[Cite as In re L.G., 2020-Ohio-3844.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY


IN RE:
                                                             CASE NO. 13-19-52
        L.G.,

DEPENDENT CHILD.
                                                             OPINION
[MOLLY B. - APPELLANT]


IN RE:
                                                             CASE NO. 13-19-53
        C.G.,

DEPENDENT CHILD.
                                                             OPINION
[MOLLY B. - APPELLANT]


                 Appeals from Seneca County Common Pleas Court
                                Juvenile Division
                     Trial Court Nos. 21650013 and 21650014

                                        Judgments Affirmed

                              Date of Decision: July 27, 2020




APPEARANCES:

        Michael R. Bassett for Appellant

        Dean Henry for Appellee
Case Nos. 13-19-52 and 13-19-53


SHAW, P.J.

       {¶1} Mother-appellant, Molly B. (“Molly”), brings these appeals from the

November 19, 2019 judgments of the Seneca County Common Pleas Court, Juvenile

Division, granting the motions to dismiss that had been filed by father-appellee,

Dennis G. (“Dennis”). On appeal, Molly argues that the trial court erred by granting

Dennis’s motions to dismiss, that the trial court improperly placed a condition

requiring Molly to progress in counseling before visitation would be modified, and

that the trial court erred in finding Molly was not in compliance with its order.

                                    Background

       {¶2} Molly and Dennis were married in 2010. They had two children

together: L.G., born in December of 2011, and C.G., born in September of 2013.

In early 2016, Dennis filed for divorce in a separate proceeding.

       {¶3} On April 14, 2016, complaints were filed in the Seneca County

Common Pleas Court, Juvenile Division, by the Seneca County Department of Job

and Family Services (“the Agency”), claiming that the children of Molly and Dennis

were dependent pursuant to R.C. 2151.04(C). Prior to April 11, 2016, the Agency

received sixteen claims that Dennis was sexually abusing the children—claims that

Molly initially stated had been made to her by L.G.; however, after two children’s

services investigations—one by the Agency and one by a different agency in Iowa—

and one criminal investigation by the Tiffin Police Department, no charges were


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Case Nos. 13-19-52 and 13-19-53


filed against Dennis. In fact, Dennis took a polygraph examination regarding the

allegations and “passed.”             Conversely, Molly would not take a polygraph

examination.1 Aside from the abuse claims that Molly continued to believe, there

were concerns regarding the children’s environment, which included Molly

potentially leading the children’s answers with her questioning and creating a fearful

environment for the children.

        {¶4} Following the filing of the dependency complaints, the Juvenile

Division took over jurisdiction with regard to the children from the domestic court

that was handling the parents’ divorce. Subsequently the children were removed

from their parents’ care and temporarily placed with a relative. A GAL was also

appointed for the children.

        {¶5} The complaints proceeded to an adjudication hearing in May of 2016

wherein the parents admitted that the children were dependent as alleged. At that

time, the children remained in the temporary custody of a relative with the Agency

having protective supervision. In addition, the parties were ordered to submit to

forensic psychological evaluations.

        {¶6} On July 1, 2016, the matters proceeded to disposition wherein the

parties submitted an agreed recommendation for temporary custody to remain with

the relative caring for the children with protective supervision provided by the


1
  There is an indication in the record that Molly did later take a polygraph examination but there is no
indication as to what the results were.

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Case Nos. 13-19-52 and 13-19-53


Agency. As the psychological evaluations had not been completed yet, the parents

were ordered to comply with the evaluations.

       {¶7} The psychological evaluation of the parents was completed by Dr.

Hustak and filed with the trial court under seal on October 12, 2016. The report was

over 100 pages in length and detailed extensive analysis of, and interaction with, the

parents and the children. Importantly, the report diagnosed Molly with a “Histrionic

Personality Disorder.”    The report elaborated, stating, inter alia, that, “On a

behavioral level, the histrionic person is over-reactive, volatile, and sometimes

engaging.” (Hustak Eval. at 58).

       {¶8} Also of note, Dr. Hustak viewed video recordings Molly had made of

Molly questioning the children about alleged abuse. Dr. Hustak stated that, “the

dramatic way in which she [questioned] and the repetitive manner in which she

solicited information from her children would suggest that she would persist until

she got an answer that made much more sense to her, even if it didn’t make much

sense to the child. Molly sees this as protecting her child but she does not seem to

understand that this could be interpreted as leading a child.” (Emphasis sic) (Hustak

Eval. at 52). Dr. Hustak found that Molly “reached conclusions based upon

suspicions and not upon fact and she is very reactive to that.” (Id. at 46). For

example, despite Dennis never being violent she believed Dennis had been thinking

about killing her.


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       {¶9} Moreover, Dr. Hustak noted that L.G. complained about her “pee”

hurting even when she was with her temporary custodian, that the child had frequent

urinary tract infections, and despite this Molly was still convinced that Dennis had

abused the children because L.G. had similar problems when she was around Dennis

(and Molly). Dr. Hustak’s report indicated that Molly would need specific coaching

about how not to reinforce L.G.’s fears.

       {¶10} After Dr. Hustak’s report was filed, the GAL filed a report that

recommended Dennis be designated as residential and custodial parent of the

children. The GAL also recommended, per Dr. Hustak’s evaluation, that Molly

engage in therapy as specified in the case plan that had been filed. The case plan

detailed at least seven areas for Molly to work in through therapy.

       {¶11} On November 23, 2016, Dennis filed a motion to be designated as

legal custodian and he requested a hearing on the matter.

       {¶12} On December 1, 2016, Molly filed her own motion to be designated

as legal custodian and for a dispositional modification hearing.

       {¶13} A hearing was held regarding a dispositional modification in

December of 2016. At that hearing, the parties represented to the trial court that an

agreement had been reached wherein Dennis would be awarded legal custody of the

children with Molly having supervised visitation with the children. All visitation

between Molly and the children would be supervised in person or monitored until


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Case Nos. 13-19-52 and 13-19-53


March 14, 2017. Once that date was reached, unless an objection was filed,

visitation would be unsupervised.      In addition, Molly was ordered to enter

counseling with a goal to craft a treatment plan consistent with the recommendations

of Dr. Hustak in his evaluation. Counselors were to provide progress reports and

detail Molly’s adherence to the treatment plan.

       {¶14} On March 6, 2017, Dennis and the Agency filed a motion objecting to

Molly receiving unsupervised parenting time alleging, inter alia, that rather than

work on her issues in therapy, Molly was attempting to use her counselor to

challenge Dr. Hustak’s findings in his evaluation. Subsequently the trial court

stayed Molly’s unsupervised visitation.

       {¶15} On March 16, 2017, Molly’s original attorneys filed motions to

withdraw contending that Molly had refused to follow legal advice and had become

combative. That motion was granted.

       {¶16} On July 6, 2017, the trial court held a hearing on the objections filed

by Dennis and the Agency to Molly receiving unsupervised visitation. Ultimately

Molly’s visits remained supervised as previously ordered.     The trial court noted

issues such as Molly seeing an unapproved therapist who did not appear to be

creating a treatment plan consistent with what had been ordered by the trial court.

The trial court also noted that the therapist should not be used for the purposes of

challenging the findings of Dr. Hustak’s evaluation; rather, the therapist should be


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Case Nos. 13-19-52 and 13-19-53


used for the purposes of addressing the issues that had already been determined and

defined.

         {¶17} On October 3, 2017, the GAL filed a supplemental report

recommending that Dennis remain the primary residential and custodial parent.

“This [GAL] believes that [Molly] should have no contact with the children until

both her therapy and [L.G.’]’s therapy indicate that it would be more appropriate

and less harmful [than] the contact that currently exists between [Molly] and her

two girls.” (Doc. No. 84).2

         {¶18} On October 5, 2017, Molly’s new attorney moved to withdraw as

counsel of record due to a breakdown of the attorney/client relationship.

         {¶19} A review hearing was held October 11, 2017, though Molly appeared

an hour late after the Agency went to her home to get her. Molly claimed that she

thought the hearing started later. After the issues Molly was having with her current

attorney were discussed, Molly’s counsel was permitted to withdraw and the matter

was continued so Molly could secure new legal counsel.

         {¶20} The review hearing resumed on December 7, 2017. At that hearing

the trial court terminated the Agency’s protective supervision; however, the

previously ordered treatment plan remained as a condition for any motions by Molly

for unsupervised visitation. (Doc. No. 95).


2
 The docket filings are largely identical but the numbering is slightly different. We have used the document
numbers from trial court case 21650013, corresponding to appellate number 13-19-52.

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Case Nos. 13-19-52 and 13-19-53


       {¶21} The next relevant filing in these cases for purposes of appeal occurred

over a year later, on February 28, 2019, when Molly filed “Motion[s] to Award

Mother Standard Local Visitation.”

       {¶22} On April 16, 2019, the trial court held a pretrial hearing on Molly’s

motions, ordering Patchworks House, which had been supervising Molly’s

visitation, to prepare a summary of the supervised visitations since its last report to

the trial court. In addition, the trial court stated, “In order to determine compliance

with the prior orders of this Court, Mother, Molly * * * is to provide executed

Releases of Information in favor of the Court, the [GAL] (if applicable), and counsel

of record for each and every mental health/counseling provider with whom she has

treated or been referred since August 12, 2016.” (Doc. No. 114). An entry on the

matter was filed May 3, 2019.

       {¶23} On June 5, 2019, another pretrial was held wherein “[n]umerous

threshold issues were discussed.” (Doc. No. 121). The issues included anticipated

discovery requests to determine if Molly had met the provisions of the previously

filed judgment entries for modification of her supervised visitation. The trial court

ordered any discovery requests to be made and responded to within thirty days.

Dennis made his discovery request on June 7, 2019.

       {¶24} On August 9, 2019, Dennis filed “Motions to Dismiss” Molly’s

pending motions to modify visitation because Molly had failed to provide discovery


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Case Nos. 13-19-52 and 13-19-53


as ordered by the trial court even though over two months had passed since the

request.

           {¶25} On August 12, 2019, the trial court held another pretrial hearing

wherein it heard arguments regarding the motions to dismiss filed by Dennis.

Following the arguments, the trial court ordered Molly to supply evidence of

compliance and/or completion of the previously ordered treatment plan within

fourteen days by way of affidavit, supported by certification from a treatment

provider that was familiar with Dr. Hustak’s report and recommendations. The

GAL noted at this hearing “that it was not in the best interest of the children to

expose them to the interview and evaluation process which would be required for

the Court to consider the Mother[’]s Motion for unsupervised visits unless and until

Mother has demonstrated her compliance with the recommendations of Dr. Hustak

and this Court[’]s previous Orders.” (Doc. No. 127).3

           {¶26} On August 26, 2019, Molly filed memorandums in opposition to

Dennis’s motions to dismiss. She argued that she had made good faith efforts to

comply with the treatment plan but could not achieve joint counseling due to

“Father’s Intransigence.” (Doc. 126). She attached five copies of progress reports

from therapy, though only three specifically dealt with her, dated September 7,




3
    The trial court summarized this exchange in a later-filed judgment entry.

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Case Nos. 13-19-52 and 13-19-53


2017; November 2, 2017; and November 21, 2017.4 Nothing was presented from

2018.

           {¶27} On November 19, 2019, the trial court filed judgment entries granting

Dennis’s motions to dismiss. The trial court provided a brief overview of the history

of the matter, including a prior GAL report wherein the GAL and Dr. Hustak

discussed Molly’s “poor parenting interactions, which continue to promote fear and

anxiety and the idea that the children are not safe, [which] is extremely detrimental

to the children.” (Doc. No. 127). The trial court then reviewed the motions to

dismiss, the responses to them, and determined as follows.

           Mother filed a Memorandum in Opposition to Motion to Dismiss
           on August 26, 2019. The Memorandum as filed included New
           Transitions Counseling Progress notes as evidence that L.G. was
           progressing and doing well with her visits with her mother.
           Mother further argued that Father was resisting a combined
           counseling session citing the progress notes that “Dennis is
           apprehensive” in response to discussion about combined session.
           (progress note 1-4-17) The Court notes in reviewing the progress
           notes as they relate to Molly the clinician checked the box Slight
           Improvement (progress note 9-7-17) and Little or No
           Improvement (progress note 11-2-17). The memorandum did not
           include any affidavit, or certification for a treatment provider
           that is familiar with Dr. Hustak’s report, that Mother has
           completed or complied with the court[’]s previously ordered
           treatment plan. While it is apparent that the child L.G. is making
           progress, the Court has no evidence to determine mother[’s]
           progress, compliance or completion of any treatment plan
           intended to help her with the cognitive restructuring necessary in
           learning how to relate to her children in a manner that is not
           detrimental to them.

4
    She attached two reports related to L.G. as well.

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Case Nos. 13-19-52 and 13-19-53



            Accordingly, since the Court[’]s previous Orders of March
       3, 2017 and January 2, 2018 said such treatment was a condition
       for any motions for unsupervised visitation, the Court Finds that
       it would not be in the children’s best interest to allow this matter
       to proceed until Mother has demonstrated compliance with the
       Court[’]s previously ordered treatment plan. The father’s
       Motion to Dismiss is Therefore GRANTED.

 (Doc. No. 127). It is from these judgments dismissing Molly’s motions that Molly

 appeals, asserting the following assignments of error for our review.

                          Assignment of Error No. 1
       The trial court denied appellant due process of law in dismissing
       her motion for modification of visitation without a hearing.

                         Assignment of Error No. 2
       The trial court inappropriately interposed a condition upon
       appellant requiring counseling to take place before her motion
       would be considered.

                           Assignment of Error No. 3
       The trial court erred in finding appellant in noncompliance with
       the treatment plan.

                             First Assignment of Error

       {¶28} In her first assignment of error, Molly argues that the trial court

deprived her of due process by dismissing her motions for modification of visitation

“without a hearing.” We disagree.

       {¶29} “The fundamental requirement of due process is the opportunity to be

heard “ ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge,

424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976), quoting Armstrong v. Manzo, 380 U.S.


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Case Nos. 13-19-52 and 13-19-53


545, 552, 85 S.Ct. 1187, 1191 (1965). It is important to emphasize that for due

process compliance a hearing is not necessarily required; rather it is the opportunity

to be heard. See, e.g., Board of Trumbull Township Trustees v. Rickard, 11th Dist.

Ashtabula Nos. 2016-A-0044-45, 2017-Ohio-8143, ¶ 60.

       {¶30} At the outset of our analysis in this case, we note that the trial court

has had years of experience dealing with these parties in this litigation. The previous

final judgment of the trial court awarded legal custody to Dennis with Molly having

supervised visitation. As a condition of having supervised visitation removed,

Molly had to progress through therapy that addressed her issues as identified by Dr.

Hustak in his evaluation. Thus when Molly filed for a motion to modify visitation,

and Dennis made a request for discovery related to Molly’s progress in therapy, the

trial court ordered Molly to comply and provide evidence.

       {¶31} The trial court then held multiple pretrial hearings addressing potential

evidence that would be produced or would need to be produced, at which times

Molly was able to be heard. Nevertheless, after Dennis made his request for

discovery, Molly did not comply with the trial court’s discovery order. Dennis then

filed his motions to dismiss Molly’s motions for modification and only at that time,

after another hearing, did Molly respond and attach a total of five progress reports

to her memorandum in response, only three of which were related to her. Further,

all three of those reports were from 2017—there was nothing in 2018 and nothing


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Case Nos. 13-19-52 and 13-19-53


from anyone who claimed to be familiar with Dr. Hustak’s report and

recommendations.

       {¶32} Under these circumstances, we fail to see how Molly was deprived of

“due process” when she was repeatedly provided notice and an opportunity to be

heard. When she filed her motion, multiple pretrial hearings were held where she

was present and able to discuss the issues. She was then specifically notified that

she needed to comply with the discovery request regarding her therapy progress and

rather than respond to that request, she allowed the trial court’s deadline to lapse.

Only after Dennis filed motions to dismiss did she bother to respond at all, with no

actual evidentiary documentation. Instead of assembling her documentation and

presenting it to the trial court, or proceeding through therapy to acquire the

documentation if she did not have it, she filed an appeal with this Court seeking us

to determine that the trial court deprived her of due process. However, it is only

through Molly’s own lack of diligence that this case did not proceed further.

       {¶33} In sum, Molly repeatedly received notice of the proceedings and

consistently had opportunities to be heard. She rejected those opportunities and we

will not save her from herself on appeal. Therefore, her first assignment of error is

overruled.




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Case Nos. 13-19-52 and 13-19-53


                             Second Assignment of Error

       {¶34} In Molly’s second assignment of error, she argues that the trial court

erred by requiring her to attend counseling before her motion to modify would be

considered. Notably, Molly cites no legal authority to support her position that the

trial court erred and we could disregard it or overrule it for this reason alone. See,

e.g., Huffer v. Brown, 10th Dist. Franklin No. 12AP-1086, 2013-Ohio-4384, ¶ 12.

However, we will proceed to address the argument that is made.

       {¶35} “The juvenile court retains the authority to grant, limit, or

eliminate visitation rights with respect to a child when crafting the final disposition

of a case.” Matter of X.G., 5th Dist. Tuscarawas No. 2018 AP 04 0015, 2018-Ohio-

4890, ¶ 27.      In order to further a child’s best interest, the trial court has

the discretion to limit or restrict visitation rights. Hurst v. Hurst, 5th Dist. Licking

No. 12-CA-70, 2013-Ohio-2674. “This includes the power to restrict the time and

place of visitation, to determine the conditions under which visitation will take

place, and to deny visitation rights altogether if visitation would not be in the best

interest of the child.” Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239, 2000

WL 652540 (May 12, 2000).

       {¶36} As Dennis argues in his brief to this Court, “[t]he connection between

visitation and Molly B[.]’s compliance with the treatment plan and counseling is

amply demonstrated in the record.” (Appe.’s Br. at 11). Dennis contends that they


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Case Nos. 13-19-52 and 13-19-53


are “inextricably linked to the best interests of the children.” (Id.) After reviewing

the record, we agree.

       {¶37} Molly initially agreed to supervised visitation and the entry

implementing that visitation, and designating Dennis as legal custodian, required

Molly to attend counseling. She was specifically directed to address the concerns

proposed by Dr. Hustak before she could modify her visitation. Given that Molly’s

issues were a large part of what caused issues in this case, particularly per Dr.

Hustak’s report, we cannot find that the trial court erred by requiring Molly to seek

counseling before being awarded further visitation. Dr. Hustak’s report, and the

GAL as well, were concerned that Molly’s interaction with the children could be

harming them mentally and that she needed to learn how to appropriately interact

with her children. On the facts before us, and with Molly citing no legal authority

to the contrary, we cannot find that the trial court erred. Therefore her second

assignment of error is overruled.

                             Third Assignment of Error

       {¶38} In Molly’s third assignment of error, she argues that the trial court

erred by finding that she was not in compliance with the treatment plan. In support,

she cites the progress notes that had been attached to the motion to dismiss, the latest

of which was dated in November of 2017, well over a year before Molly made her

motion.


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Case Nos. 13-19-52 and 13-19-53


       {¶39} Again, it is not just that Molly apparently failed to comply with her

treatment plan in this case, it is also that Molly failed to provide any evidence that

she was attending treatment at all beyond November of 2017. The trial court

specifically listed types of evidence Molly could produce to establish her

compliance and she produced none of what the trial court listed. See generally, In

re: A.B., 6th Dist. Lucas No. L-18-1136, 2018-Ohio-4206 (discussing evidence

supporting finding o noncompliance with juvenile court orders). On the basis of the

record before us, we cannot find that the trial court erred. Therefore, Molly’s third

assignment of error is overruled.

                                     Conclusion

       {¶40} For the foregoing reasons Molly’s assignments of error are overruled

and the judgments of the Seneca County Common Pleas Court, Juvenile Division,

are affirmed.

                                                                Judgments Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/jlr




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