[Cite as In re J.L.H., 2011-Ohio-5586.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
           J.L.H., J.A.H. and F.K.H..          :   Julie A. Edwards, J.
                                               :
                                               :   Case No. 2010CA00266
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common Pleas, Family
                                                    Court Division, Case Nos.
                                                    2008JCV0724 and 2009JCV01490

JUDGMENT:                                           Affirmed In Part and Reversed
                                                    and Remanded In Part

DATE OF JUDGMENT ENTRY:                             October 17, 2011

APPEARANCES:

For Plaintiff-Appellees                             For Defendant-Appellants

MATTHEUW OBERHOLTZER                                TYLER J. WHITNEY
116 Cleveland Avenue, North                         137 South Main Street
Suite 650                                           Suite 201
Canton, Ohio 44702                                  Akron, Ohio 44308
[Cite as In re J.L.H., 2011-Ohio-5586.]


Edwards, J.

        {¶ 1} Appellants, F.H. and E.H., appeal from the August 25, 2010, Judgment

Entry of the Stark County Court of Common Pleas, Family Court Division.

                                 STATEMENT OF THE FACTS AND CASE

        {¶ 2} Appellants, who are married, are the parents of J.L.H. (DOB 3/17/05),

J.A.H. (DOB 2/28/07) and F.K.H. (DOB 4/28/09). Appellees Thomas and Kathleen

Shimko are the maternal grandparents and appellees Thomas and Judit Shimko are the

maternal aunt and uncle.

        {¶ 3} On June 30, 2008, appellees Thomas and Kathleen Shimko filed a

complaint in Case No. 2008 JCV 0724 seeking custody of J.L.H. and J.A.H. Appellees,

in their complaint, alleged that appellant E.H. was mentally retarded and that they had

reason to believe that appellant F.H. physically and/or sexually abused the children.

Appellees, in their motion, asked that they be awarded visitation. On the same date,

appellee Thomas and Kathleen Shimko filed a motion asking to be designated the

temporary residential and legal custodian of the two children and for an oral hearing. A

hearing was scheduled for September 8, 2008.

        {¶ 4} On September 2, 2008, appellant E.H. filed a motion asking that the

complaint for custody filed by appellees Thomas and Kathleen Shimko be dismissed on

the basis that the facts alleged in the complaint did not provide a sufficient basis to

interfere with her fundamental right to the custody, care and control of her children, that

the childrens’ parents had not invoked the jurisdiction of any court concerning the

children and that “this is not a matter brought to the court under the authority of children

services.” Appellant E.H., in her motion, also alleged that there was no “precipitating
Stark County App. Case No. 2010CA00266                                                3


event” that would grant appellees Thomas and Kathleen Shimko the right to seek

visitation with the children. Appellant E.H. noted that she had been investigated three

times by the Stark County Department of Job and Family Services and that all three

times, the cases had been closed with no finding of neglect or abuse.

      {¶ 5} Pursuant to a Magistrate’s Order filed on September 9, 2008, the

Magistrate overruled appellant E.H.’s motion and granted appellees Thomas and

Kathleen Shimko leave to amend their complaint to join appellant F.H. as a necessary

party. The Magistrate also granted appellees Thomas and Kathleen Shimko weekly

unsupervised companionship with the two children on Saturdays from 11:00 a.m. to

4:00 p.m. A pretrial was scheduled for November 5, 2008.

      {¶ 6} On September 10, 2008, appellees Thomas and Kathleen Shimko filed an

amended complaint for custody, alleging that appellants were unfit and/or unsuitable to

raise J.L.H and J.A.H.

      {¶ 7} Appellant F.H., on September 12, 2008, filed a pro se objection to

unsupervised visitation. Appellant E.H., on September 19, 2008, filed a Motion to Set

Aside Magistrate Order for Unsupervised Visitation.

      {¶ 8} Thereafter, on October 24, 2008, appellants filed a Motion for Immediate

Termination of Interim Visitation Order, arguing that they were not unfit in any way and

that appellees’ allegations against them were false and without merit. A hearing on the

same was scheduled for November 5, 2008.

      {¶ 9} The Guardian Ad Litem, as memorialized in a report filed on November 5,

2008, indicated that he could not support the complaint for change of custody. The
Stark County App. Case No. 2010CA00266                                                 4


Guardian Ad Litem stated that the appellees’ allegations did not establish that

appellants were unfit.

      {¶ 10} A hearing was held on November 5, 2008 on appellees’ Motion for

Custody and appellants’ Motion to Terminate Visitation. A final pretrial was scheduled

for January 28, 2009 and the Motion to Terminate Visitation was scheduled for the

same day. (This pretrial was continued due to, inter alia, medical issues of counsel for

appellees and was not held until June 10, 2009).

      {¶ 11} A hearing on appellant F.H’s September 12, 2008, objection to

unsupervised visitation and appellants’ October 24, 2008, Motion for Immediate

Termination of Interim Visitation Order was held on November 10, 2008. Pursuant to a

Judgment Entry filed on November 14, 2008, the objections were overruled.

      {¶ 12} A pretrial hearing was held on June 10, 2009, before a Magistrate.

Pursuant to a Magistrate’s Order filed on June 11, 2009, the Magistrate set a trial for

September 30, 2009, and ordered the parties to submit to a custody evaluation with Dr.

Tully at appellees Thomas and Kathleen Shimko’s cost. The parties were to call for an

appointment no later than June 11, 2009.

      {¶ 13} Appellees Thomas and Kathleen Shimko, on September 17, 2009, filed a

request to enter upon appellants’ land to inspect and photograph the same.

      {¶ 14} Appellees Thomas and Kathleen Shimko, on September 25, 2009, filed a

Motion for Contempt against appellants, alleging, in part, that they had violated court

orders by failing to complete a custody evaluation with Dr. Tully and by failing to allow

their attorney onto appellant’s property.   A show cause hearing was scheduled for

September 30, 2009, before a Magistrate. The Magistrate, as memorialized in an Order
Stark County App. Case No. 2010CA00266                                                     5


filed on September 30, 2009, found that appellant F.H. had stated to the Guardian Ad

Litem that appellants would not complete the psychological evaluation with Dr. Tully and

that without such evaluation, the issue of appellants’ suitability could not be determined.

The Magistrate continued the trial and also granted an interim order of custody of J.A.H.

and J.L.H. to appellees Thomas and Kathleen Shimko. Appellees dismissed their

pending contempt action on September 30, 2009.

       {¶ 15} Appellants, on October 2, 2009, filed an objection to the interim order of

custody to appellees. On October 6, 2009, they filed a motion for immediate termination

of such order.

       {¶ 16} A hearing on appellants’ October 2, 2009, objection to change of custody

and other motions was held on November 9, 2009. The trial court, as memorialized in a

Judgment Entry filed on November 10, 2009, stated, in relevant part, as follows: “No

transcript was provided and Attorney Oberholtzer [appellees’ attorney] moved to dismiss

on those grounds but the court has heard from both parties and has considered the

merits of these matters. The parents motions are all OVERRULED/DISMISSED and this

case is closed.” The trial court’s Judgment Entry contained the following language:

       {¶ 17} “A party may, pursuant to Rules 3 and 4 of the Rules of Appellate

Procedure, appeal a final order of this court by filing a Notice of Appeal within thirty days

of the filing of the Entry by the Trial Court. A party shall not assign as error on appeal

the court’s adoption of any finding of fact or conclusion of law in this decision unless the

party timely and specifically objects to that finding or conclusion as described herein.

Failure to file a timely Notice of Appeal could result in a party waiving his or her right to

appeal.”
Stark County App. Case No. 2010CA00266                                                6


      {¶ 18} Thereafter, on November 24, 2009, appellees Thomas Shimko and Judit

Shimko, maternal aunt and uncle, filed a complaint in Case No. 2009 JCV 01490

seeking legal custody of F.K.H., who was born on April 28, 2009. On the same date,

they filed a motion asking to be designated temporary residential and legal custodian of

the minor child.   A hearing was scheduled for January 25, 2010. Pursuant to a

Magistrate’s Order filed on January 27, 2010, a pretrial was scheduled for March 24,

2010 and appellees’ motion for immediate placement/transfer of physical custody was

overruled.

      {¶ 19} On January 7, 2010, appellants had filed a Motion for Return of Custody in

Case No. 2008 JCV 0724. Appellants, in their motion, had stated that since such case

had been dismissed, they had both submitted to psychological evaluations and been

involved in counseling.

      {¶ 20} A hearing before a Magistrate was held on March 24, 2010. The

Magistrate, in an order filed on March 26, 2010 in both cases, ordered all parties to

submit to a parenting evaluation with Dr. Robin Tener and granted appellants visitation

with J.A.H. and J. L.H. The Magistrate also scheduled a pretrial for June 30, 2010. The

Magistrate ordered appellants to pay 20% of the costs of the parenting evaluation. The

Magistrate also indicated that she was taking the issue of visitation with F.K.H. under

advisement.

      {¶ 21} On April 1, 2010, appellees Thomas and Judit Shimko filed a Motion in

Case No. 2009 JCV 01490 to Set Aside the Magistrate’s Order, arguing that the

Magistrate should have granted them visitation with F.K.H. A hearing on such motion

was set for April 27, 2010. Neither appellants nor their attorney appeared at such
Stark County App. Case No. 2010CA00266                                                    7


hearing. As memorialized in a Judgment Entry filed on April 27, 2010, the trial court

sustained the Motion to Set Aside and granted custody of F.K.H. to appellees Thomas

and Judit Shimko. The trial court indicated that the Guardian Ad Litem was concerned

about appellants’ home and “possible mental health issues of the parties which may

place this child in danger.” The trial court stated, in its entry, that it would consider

“appropriate visitation with the parents upon compliance with court orders and proper

application.” Appellants filed a Motion for Relief from Judgment on April 28, 2010,

alleging, in part, that appellants were never notified of the hearing date.

       {¶ 22} On April 28, 2010, appellees Thomas and Judit Shimko filed a motion in

Case No. 2009 JCV 01490 requesting that a bench warrant be issued for appellants.

Appellees, in their motion, indicated that they had been to appellants’ home on two

separate occasions and that appellants had not been present. In their motion, they

indicated that they believed that appellants had fled with F.K.H.             Pursuant to a

Judgment Entry filed on the same date, appellants were ordered to immediately turn

over custody of F.K.H. to appellees Thomas and Judit Shimko.         After appellants failed

to do so, appellees Thomas and Judit Shimko filed a motion for contempt against them.

Appellees, in their motion, also alleged that appellant had violated previous court orders

by not paying the court-ordered psychologist and scheduling a psychological

examination and by refusing to allow the Guardian Ad Litem into their house to conduct

a home visit. A hearing on such motion was scheduled for May 4, 2010.

       {¶ 23} Appellees, Thomas and Kathleen Shimko, on April 28, 2010, filed a motion

in Case No. 2008 JCV 0724 requesting that visitation between the minor children and

appellants be terminated. Appellees, in their motion, indicated that in the companion
Stark County App. Case No. 2010CA00266                                                   8


case (Case No. 2009 JCV 01490), their son and daughter-in-law had been granted legal

custody of F.K.H. and that it was believed that appellants had fled the jurisdiction with

F.K.H. Appellees further indicated that they were concerned that appellants might show

up at their house for visitation and then attempt to flee the jurisdiction with J.L.H. and

J.A.H. As memorialized in a Judgment Entry filed on April 28, 2010, such motion was

granted and visitation was terminated until further order of court.

       {¶ 24} As memorialized in a Judgment Entry filed on May 4, 2010 in Case No.

2009 JCV 01490, the trial court found that appellant F.H. had been given the

opportunity to reveal the whereabouts of J.F.H. and had indicated that the child was at

home with appellant E.H. The trial court found probable cause for law enforcement to

enter the home, secure the child and return the child to his custodians. Pursuant to a

Judgment Entry filed in such case on May 5, 2010, the trial court took the Motion for

Relief under Advisement and ordered that the contempt be merged to the pretrial.

       {¶ 25} On May 6, 2010, appellants filed a motion in Case No. 2008 JCV 0724 for

modification of the trial court’s March 26, 2010, order. Appellants, in their motion,

indicated that they were indigent and could not pay the $1,200.00 deposit for their share

of the psychological evaluations by Dr. Tener. A hearing on such motion was scheduled

for June 30, 2010. An amended motion to modify was filed on June 29, 2010.

       {¶ 26} A hearing on appellants’ Motion for Return of Custody and appellees

Thomas and Judit Shimko’s Motion for Custody of F.K.H. was held on June 30, 2010,

before a Magistrate. The Magistrate, in an order in both cases, found that appellants

had not paid for the psychological evaluation. The Magistrate ordered that a final pretrial
Stark County App. Case No. 2010CA00266                                                      9


be scheduled for August 25, 2010, and that prior orders regarding placement of the

children remain in effect.

          {¶ 27} Appellants, on August 17, 2010, filed a motion in Case No. 2008 JCV

0724 seeking visitation with their minor children during the pendency of the case and

also filed a motion seeking to modify the court order requiring them to submit to a

psychological evaluation with Dr. Robin Tener. Appellants alleged that they could not

afford Dr. Tener’s fee and that they had found another psychologist who would be able

to perform a psychological evaluation for a lesser cost. A hearing on the motion to

modify was scheduled for August 25, 2010.

          {¶ 28} On August 17, 2010, appellants filed a Motion for Visitation in Case No.

2009 JCV 01490, seeking visitation with their youngest child during the pendency of the

case. On such date, appellants also filed a motion to modify the order requiring them to

submit to a psychological evaluation with Dr. Tener.

          {¶ 29} Pursuant to a Judgment Entry filed on August 26, 2010, in both cases the

trial court dismissed all pending motions in Case No. 2008 JCV 0724 without prejudice1

and ordered that appellees’ motions and interim orders be made the final orders in Case

No. 2009 JCV 01490. The trial court ordered that both cases be closed and that any

party may “refile similar motions affecting custody/visits regarding these children if

accompanied by the completed Dr. Tener report and an additional deposit of $1000 for

the GAL…” The trial court, in its Judgment Entry, made the following findings of fact:

          {¶ 30} “Parties appeared for PT and these parents have still not complied with

the court’s orders, especially regarding the needed custody evaluations. The court did

hear from all parties present.
1
    Because the motions were dismissed without prejudice, they presumably can be refiled.
Stark County App. Case No. 2010CA00266                                              10


       {¶ 31} “The court is not able to properly consider these motions and the parents

have failed to prosecute their motions as a result.       These parents present with

substantial mental health issues and have secreted these children from the authorities

in the past. The father also indicated in open court in a prior proceeding, while they

were hiding children, that the mother was suicidal and the children may in fact be in

danger. The court has heard and considered the recommendations of the GAL as to

the best interests of these children.”

       {¶ 32} Appellants now raise the following assignments of error on appeal:

       {¶ 33} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

APPELLEES CUSTODY OF THE APPELLANTS THREE MINOR CHILDREN IN

VIOLATION OF THEIR CONSTITUTIONAL RIGHTS.

       {¶ 34} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

APPELLEES CUSTODY OF THE APPELLANTS THREE MINOR CHILDREN

WITHOUT      AN    EVIDENTIARY           HEARING   AND   WITHOUT     A   FINDING   OF

UNSUITABILITY.

       {¶ 35} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

APPELLEES CUSTODY OF THE APPELLANT’S THREE MINOR CHILDREN AND

CLOSING THE CASES FOR THE REASON THAT APPELLANTS ALLEGEDLY

FAILED TO COMPLY WITH COURT ORDERS.

       {¶ 36} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

APPELLEES VISITATION WITH THE APPELLANTS TWO MINOR DAUGHTERS

WITHOUT CONSIDERING THE APPELLANTS WISHES AND/OR BEST INTERESTS

OF THE CHILDREN.
Stark County App. Case No. 2010CA00266                                                    11


       {¶ 37} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING

THE APPELLANTS REASONABLE VISITATION WITH THEIR MINOR CHILDREN

DURING THE PENDENCY OF THE CASES AS WELL AS IN THE FINAL

DISPOSITION OF THESE CASES.”

                                           I, II, III

       {¶ 38} Appellants, in their first three assignments of error, argue that the trial

court erred in granting custody of J.L.H. and J.A.H. to appellees Thomas and Kathleen

Shimko and F.K.H. to appellees Thomas and Judit Shimko.

       {¶ 39} As is stated above, the Magistrate in Case No. 2008 JCV 0724 as

memorialized in an Order filed on September 30, 2009, granted an interim order of

custody of J.A.H. and J.L.H. to appellees Thomas and Kathleen Shimko. Appellants, on

October 2, 2009, filed an objection to the interim order of custody to appellees and, on

October 6, 2009, filed a motion for immediate termination of such order.

       {¶ 40} A hearing on appellants’ October 2, 2009 objection to change of custody

and other motions was held on November 9, 2009. The trial court, as memorialized in a

Judgment Entry filed on November 10, 2009, stated, in relevant part, as follows: “No

transcript was provided and Attorney Oberholtzer moved to dismiss on those grounds

but the court has heard from both parties and has considered the merits of these

matters. The parents motions are all OVERRULED/DISMISSED and this case is

closed.” The trial court’s Judgment Entry contained the following language:

       {¶ 41} “A party may, pursuant to Rules 3 and 4 of the Rules of Appellate

Procedure, appeal a final order of this court by filing a Notice of Appeal within thirty days

of the filing of the Entry by the Trial Court. A party shall not assign as error on appeal
Stark County App. Case No. 2010CA00266                                                    12


the court’s adoption of any finding of fact or conclusion of law in this decision unless the

party timely and specifically objects to that finding or conclusion as described herein.

Failure to file a timely Notice of Appeal could result in a party waiving his or her right to

appeal.”

       {¶ 42} Appellants did not timely appeal from the trial court’s November 10, 2009

Judgment Entry which finalized the grant of custody of J.A.H. and J.L.H. to appellees

Thomas and Kathleen Shimko. Because they did not timely appeal the decision to

award legal custody of the two children to appellees Thomas and Kathleen Shimko, we

do not have jurisdiction to consider appellants’ claims in Case No. 2008 JCV 0724. See

In the Matter of M.D.D., Butler App. No. CA2009-06-170, 2010-Ohio-326. While the trial

court did not specifically state that custody was granted to Thomas and Kathleen

Shimko, it appears the parties understood that the order of November 10, 2009, was a

grant of custody to maternal grandparents Thomas and Kathleen Shimko. In appellants’

January 7, 2010, Motion for Return of Custody, appellants’ counsel stated, “the parents

have not had any contact with their daughters since the Court order granting Maternal

Grandparents custody of them.” (Emphasis added).

       {¶ 43} However, appellants also challenge the award of legal custody of J.F.H. to

appellees Thomas and Judit Shimko in Case No. 2009 JCV 01490. As is stated above,

the trial court, pursuant to a Judgment Entry filed on August 26, 2010, made the interim

order of custody of appellants’ son, to appellees Thomas and Judit Shimko, final and

closed the case. The trial court also ordered that appellants were to have no contact

with their children.
Stark County App. Case No. 2010CA00266                                                   13


       {¶ 44} From the record it is clear, and appellees admitted at the oral argument in

this matter, that no evidentiary hearing was ever scheduled on appellees Thomas and

Judit Shimko’s complaint seeking custody of F.K.H. and that none was ever held. It is

clear from the record that the trial court granted custody of such child to appellees

Thomas and Judit Shimko as punishment for appellants’ failure to submit to a

psychological evaluation by Dr. Tener.

       {¶ 45} We find that the trial court violated appellants’ due process rights by

granting custody of F.K.H. to appellees Thomas and Judit Shimko, without taking any

evidence or giving appellants a right to be heard, as punishment for non-compliance

with court orders. “Generally, due process requires that ‘a deprivation of life, liberty, or

property be preceded by notice and opportunity for hearing appropriate to the nature of

the case.’ Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct.

1487, 84 L.Ed.2d 494, (citing Mullane v. Central Hanover Bank & Trust Co. (1950), 339

U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865). At a minimum, due process of law requires

notice and opportunity for a hearing, that is, an opportunity to be heard. Mathews v.

Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. See also McGeorge v.

McGeorge (May 22, 2001), Franklin App. No. 00AP 1151, 2001 WL 537037.” In Re

Roberson, Stark App. No. 2003CA00393, 2004–Ohio–4996, ¶ 22.

       {¶ 46} Parents who are suitable have a paramount right to custody of their minor

children. In re Perales (1977), 52 Ohio St.2d 89, 97, 369 N.E.2d 1047. “In a child

custody case arising out of a parentage action between a natural parent of the child and

a nonparent, a trial court must make a parental unsuitability determination on the record
Stark County App. Case No. 2010CA00266                                                   14

before awarding legal custody of the child to the nonparent.” In re Hockstok, 98 Ohio

St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, at the syllabus.

       {¶ 47} As noted by the court in Tabler v. Snider, Noble App. No. 08 NO 357,

2010-Ohio-1545, “It is well recognized that the right to raise a child is an ‘essential’ and

‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680, citing In re

Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. Moreover, a parent's right to

custody of his child is paramount. Id., citing Perales at 97, 369 N.E.2d 1047. Because a

parent has a fundamental liberty interest in the custody of his or her child, this important

legal right is “protected by law and, thus, comes within the purview of a ‘substantial

right’[.]” Murray at 157, 556 N.E.2d 1169. “Therefore, parents ‘must be afforded every

procedural and substantive protection the law allows.’ “In re Hayes, 79 Ohio St.3d at

48, 679 N.E.2d 680, quoting In re Smith (1991), 77 Ohio App.3d 1, 601 N.E.2d 45.”

       {¶ 48} “Accordingly, it is well settled that in custody disputes between parents

and nonparents, “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.’ “Hockstok at ¶ 17, quoting Perales, syllabus.” Id at

paragraphs 21-22.

       {¶ 49} In the case sub judice, we find that the trial court violated appellants’ due

process rights by granting legal custody of F.K.H. to appellees Thomas and Judit

Shimko without an evidentiary hearing. The trial court did not take any evidence and

thus denied appellant’s due process right to the opportunity for a hearing. Moreover,
Stark County App. Case No. 2010CA00266                                                     15


the trial court appears to have granted legal custody as a means of punishing appellants

for failing to comply with prior orders of the court regarding paying for psychological

evaluations. This Court previously has held that a change of custody is not to be used

as punishment. See In the Matter of E.J.M., Stark App. No. 2010CA00171, 2011-Ohio-

977.

       {¶ 50} Appellants’ first three assignments of error are sustained in part and

overruled in part.

                                                 IV

       {¶ 51} Appellants, in their fourth assignment of error, argue that the trial court

erred in granting appellees visitation with J.A.H. and J.L.H. without considering

appellants’ best wishes and/or the best interests of the children.

       {¶ 52} We note that appellants are challenging orders that were made prior to the

November 10, 2009, Judgment Entry finalizing the grant of custody of J.A.H. and J.L.H.

to appellees Thomas and Kathleen Shimko.

       {¶ 53} Because the November 10, 2009, final order was not timely appealed, we

find appellants’ appeal of such orders is untimely.

       {¶ 54} Appellants’ fourth assignment of error is, therefore, overruled.

                                                 V

       {¶ 55} Appellants, in their fifth assignment of error, argue that the trial court erred

in not awarding them reasonable visitation with their minor children during the pendency

of the cases as well as in the final disposition of the cases.
Stark County App. Case No. 2010CA00266                                                  16


       {¶ 56} We note that a non-custodial parent’s right of visitation with his or her

children is a natural right and should be denied only under extraordinary circumstances.

Pettry v. Pettry (1984), 20 Ohio App.3d 350, 312, 486 N.E.2d 213.

       {¶ 57} As is stated above, appellants failed to file a timely appeal in Case No.

2008 JCV 0724. This Court, therefore, cannot address this assignment as it pertains to

visitation during the pendency of such case and prior to the final order of November 10,

2009. Moreover, after appellants, on January 7, 2010, filed a Motion for Return of

Custody in Case No. 2008 JCV 0724, the Magistrate, as memorialized in an order filed

on March 26, 2010, granted them visitation with J.A.H. and J.L.H. Appellees Thomas

and Kathleen Shimko, on April 28, 2010, then filed a motion to terminate visitation,

alleging that appellants had fled the jurisdiction with F.K.H. and that they feared that

they would flee also with J.A.H. and J.L.H. The trial court, pursuant to a Judgment

Entry filed on April 28, 2010, ordered that visitation be terminated until further order of

this Court.

       {¶ 58} Thereafter, on August 17, 2010, appellants filed a Motion for Visitation in

Case No. 2008 JCV 0724 seeking visitation during the pendency of the Motion for

Return of Custody and a hearing on the same was scheduled for August 25, 2010.

However, on August 25, 2010, the trial court dismissed, without prejudice, all the

pending motions in Case No. 2008 JCV 0724 and ordered that the children have no

contact with the parents. This entry was filed on August 26, 2010. The trial court found

that the appellants had failed to prosecute their motions in Case No. 2008 JCV 0724

because the appellants had not obtained the court ordered custody evaluations with Dr.

Tener. The court found “[t]hese parents present with substantial mental health issues
Stark County App. Case No. 2010CA00266                                                       17


and have secreted these children from the authorities in the past. The father also

indicated in open court in a prior proceeding, while they were hiding the children, that

the mother was suicidal and the children may in fact be in danger.”

       {¶ 59} Assuming arguendo that the dismissal of all motions in Case No. 2008

JCV 0724 is a final, appealable order, we find the dismissal without prejudice, for failure

to prosecute, was not error. The custody evaluations could provide extremely valuable

information to the court regarding the parenting abilities of the appellants. We do have

a concern however. It is unclear from the record whether the trial court held a hearing

on the appellants’ motion to reconsider the order that appellants pay 20% of Dr. Tener’s

bill for the custody evaluation.     Because the appellants cannot refile a motion for

custody or visitation without Dr. Tener’s evaluation, the trial court should, if it has not

already held a hearing on appellants’ ability to pay, hold a hearing on a future motion of

this nature filed by appellants.

       {¶ 60} In Case No. 2009 JCV 01490, appellants, on August 17, 2010, eight days

prior to the final pre-trial, filed a Motion for Visitation with their youngest child during the

pendency of the case. As is discussed above in our disposition of appellants’ first three

assignments of error, we found that the trial court erred by granting custody of F.K.H. to

appellees Thomas and Judit Shimko without an evidentiary hearing. We find, therefore,

that any challenge to the visitation orders is premature because visitation will be

considered in any final order issued after such hearing. In addition, a new Motion for

Visitation of F.K.H. during the pendency of the custody case can be refiled upon remand

of this case to the trial court.

       {¶ 61} Appellants’ fifth assignment of error is, therefore, overruled.
Stark County App. Case No. 2010CA00266                                          18


      {¶ 62} Accordingly, the judgment of the Stark County Court of Common Pleas,

Family Court Division, is affirmed in part and reversed and remanded in part.



By: Edwards, J.

Gwin, P.J. and Wise, J. concur.

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0719
[Cite as In re J.L.H., 2011-Ohio-5586.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
          J.L.H., J.A.H. and F.K.H.            :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2010CA00266




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Family Court Division, is

affirmed in part and reversed and remanded in part to the trial court for further

proceedings. Costs assessed to appellants in the appeal from Case No. 2008 JCV

0724 and to appellees, Thomas and Judit Shimko in Case No. 2009 JCV 01490




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                                                                JUDGES
