In re C.W.W.
CourtOhio Court of Appeals
Date FiledOctober 28, 2026
Docket26-CA-010
JudgePopham
StatusPublished
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Full Opinion
[Cite as In re C.W.W., 2026-Ohio-4319.]
IN THE OHIO COURT OF APPEALS
FIFTH APPELLATE DISTRICT
HOLMES COUNTY, OHIO
IN THE MATTER OF: Case No. 26-CA-010
C.W.W.
Opinion And Judgment Entry
Appeal from the Holmes County Court of
Common Pleas, Juvenile Division, Case
No. 25N004
Judgment: Affirmed in part; Reversed and
Remanded in part
Date of Judgment Entry: October 28, 2026
BEFORE: Andrew J. King, Willliam B. Hoffman, and Kevin W. Popham, Judges
APPEARANCES: Matthew Latanich, Todd E. Cheek, for Plaintiff-Appellee; Nicole
Hamsher, for Defendant-Appellant
OPINION
Popham, J.,
{¶1} Appellant R.W.W. (“Mother”) appeals from the July 8, 2026, Judgment Entry
of the Holmes County Court of Common Pleas, Juvenile Division, granting legal custody of
her minor child, C.W.W. (“the Child”), to non-relatives M.N. and J.N. (“Custodians”).
Appellee is the Holmes County Department of Jobs and Family Services (“Agency”).
Facts And Procedural History
Initiation of the Case
{¶2} Mother is the biological mother of the Child, born May 25, 2021, and his half-
sibling brother C.S., born September 13, 20131.
{¶3} The children had been previously adjudicated dependent/neglected in Stark
County, Ohio, due to lack of supervision and domestic violence concerns. The children were
in the temporary custody of Stark County Jobs and Family Services between December 2021
and October 22, 2022, when the children were returned to Mother.
{¶4} On January 14, 2025, in Holmes County, Ohio a Complaint was filed alleging
the children were abused, neglected or dependent. The allegations included Mother’s
homelessness and drug abuse, a lack of food and clothing for the children, and Mother’s lack
of supervision of the children. On January 13, 2025, temporary custody of C.S. and the Child
was granted to the Agency. On January 31, 2025, the Custodians filed a Motion to Intervene.
{¶5} At the adjudicatory hearing held March 10, 2025, Mother stipulated to a
finding of Dependency, and temporary custody with the Agency was continued.
{¶6} On March 13, 2025, the court held a review hearing and noted that the children
were now in their second foster care placement. The court granted the request for a home-
study to be completed regarding the Custodians.
{¶7} On April 7, 2025, the court conducted a review hearing and noted that the
children had been placed with the Custodians since March 21, 2025. Temporary custody with
the agency was continued and Mother was directed to address her substance abuse issues.
1
C.S. is not a party to this appeal.
{¶8} On April 28, 2025, Mother filed a Notice to the Court indicating that she had
entered inpatient drug treatment on April 18, 2025.
{¶9} On June 2, 2025, the court held a review hearing and noted that the children’s
counselor wanted to bring Mother into the counseling sessions as soon as possible. The court
further noted that it was hopeful that the children could be returned to Mother before the start
of the new school year.
{¶10} On August 13, 2025, C.S. was removed from the Custodians’ home when
allegations surfaced that he had sexually abused the Child. C.S. was placed in a residential
home operated by The Village Network.
{¶11} On September 2, 2025, the court held a review hearing and noted that Mother
was employed full-time, had completed parenting classes, inpatient drug treatment, intensive
outpatient drug counseling (IOP), was engaged in individual counseling, and had filed for
divorce from the Child’s father.
{¶12} On February 10, 2026, the Custodians filed a motion for legal custody. By
Judgment Entry dated February 17, 2026, the trial court granted the first of two possible 6-
month extensions of temporary custody to the Agency.
{¶13} The juvenile court conducted a hearing on the motion for legal custody, during
which the following evidence was presented.
Testimony of Tiffany Fisher
{¶14} Fisher testified that the Child had been out of Mother’s home since January
2025 and had previously been removed from Mother’s care in a Stark County case from
December 2021 through October 2022. During that case, the Child was placed in the home
of the Custodians’ daughter. In October 2022, the Child was returned to Mother’s care but
continued to have contact with the Custodians.
{¶15} Fisher testified that the Child and C.S. were placed in the Custodians’ home in
March 2025 and that the Child had remained there since that time.
{¶16} Fisher testified that C.S. was verbally and physically abusive toward the Child.
While C.S. was in the Custodians’ care, it was reported that he took the underwear of female
residents and made sexually explicit drawings. C.S. participated in counseling, although the
provider did not identify risks associated with his behavior at that time.
{¶17} Fisher testified that, in August 2025, it was confirmed that C.S. had sexually
abused the Child. Fisher testified that C.S. was removed from the Custodians’ home on
August 13, 2025, and placed in a residential home operated by The Village Network. Fisher
further testified that C.S. was successfully discharged from The Village Network in February
2026, was returned to Mother’s custody, and has consistently attended counseling since his
release.
{¶18} Fisher testified that there had been no disclosures indicating that the sexual
abuse of the Child by C.S. occurred in Mother’s home.
{¶19} Fisher further testified that Mother had continued to appear weekly for random
drug screening and had consistently tested negative for drugs since April 2025. According to
Fisher, Mother had done extremely well with her case plan and had completed additional
services that were not required by the plan. Fisher testified that, but for the sexual-abuse
concerns involving the children, the Agency would be recommending reunification of Mother
and Child.
Testimony of Jeremy Nussbaum
{¶20} Nussbaum testified that he began providing therapy to the Child on October
27, 2025.
{¶21} Nussbaum testified that the Child’s progress had been slow but that he was not
concerned because the rate of progress was normal for a child of the same age. Nussbaum
testified that the Child had not processed the sexual abuse by C.S .
{¶22} Nussbaum was unable to offer an opinion concerning when contact between
the Child and C.S. should resume. He also testified that it was not appropriate for Mother to
participate in the Child’s therapy sessions because the Child was not yet open to processing
his trauma. Nussbaum could not predict when Mother's participation would be helpful.
{¶23} Nussbaum further testified that he could not predict when the Child and C.S.
would be able to reunite or resume contact with one another.
Testimony of M.N. - Custodian
{¶24} M.N. testified that she and her husband, J.N., had placement of both C.S. and
the Child beginning in March 2025.
{¶25} M.N. testified that Child had previously been placed in her daughter’s home
for foster care from December 2021 through October 2022. Because her daughter was
unmarried, M.N. and J.N. spent considerable time with their daughter and the Child during
that period. The Child was returned to Mother’s care in October 2022, and M.N.’s daughter
moved to Florida around the same time. M.N. testified that she and J.N. continued to babysit
the Child after his return to Mother’s care.
{¶26} During that period, C.S. was placed with his great-aunt, and M.N. and J.N.
had little contact with him. When C.S. was placed with M.N. and J.N. in March 2025, they
were informed through notes from his prior foster placement that C.S. had engaged in
sexually inappropriate behavior.
{¶27} M.N. testified that C.S. would repeatedly tell the Child that he hated him,
would intentionally trip the Child, and would shove the Child’s face down. By June 2025,
M.N. noticed increased interaction between the brothers and began to observe behavior
between them that she believed was sexual in nature. M.N. also testified that C.S. began
taking underwear belonging to her and to her daughter. When questioned about the behavior,
C.S. did not explain his conduct, apologize, or express remorse.
{¶28} M.N. testified that the Child was doing very well in the Custodians’ home. The
Child attended preschool during the 2025-2026 school year and was expected to begin
kindergarten in the fall of 2026. M.N. described the Child as healthy and very active and
testified that he enjoyed being outdoors. She described the Child as “very sweet,” kind,
considerate, smart, and funny, and stated that he was “so amazing.” M.N. also testified that
the Child enjoyed both giving and receiving hugs.
Testimony of J.N. - Custodian
{¶29} J.N. testified consistently with M.N.’s testimony. He described the Child as
happy and pleasant to be around and testified that the Child enjoyed riding his bicycle. J.N.
described the Child as a “great little companion.”
Testimony of Mother
{¶30} Mother testified that she had completed, or was in the process of completing,
all the requirements of her case plan and had maintained her sobriety.
{¶31} Mother testified that she had completed residential treatment, intensive
outpatient treatment, aftercare, counseling, peer support, and weekly drug screening. She
testified that her last positive drug screen was in April 2025. Mother also testified that she
attended twelve-step meetings three times per week, helped establish one of the meetings,
completed step work, obtained employment, changed her associations, and focused her life
on recovery.
{¶32} Mother testified that she had also participated in support and educational
services concerning sibling sexual abuse. She had joined support groups, attended educational
webinars, obtained educational materials, read books, completed online courses, and
participated in a weekly support group for parents coping with sibling sexual abuse.
{¶33} Mother testified that, if reunification progressed, she would employ safety
planning, counseling, relapse-prevention planning, rules, accountability, and age-appropriate
discussions to protect the children.
{¶34} Mother asked the juvenile court not to grant legal custody to the Custodians at
this time. She requested additional time for the Child to make the progress necessary to permit
consideration of his return to her care alongside her care of C.S.
Testimony of Monica Miyashita, Guardian ad Litem
{¶35} The guardian ad litem (“GAL”) testified concerning the warm and loving
relationship between the Custodians and the Child. The GAL’s report stated that the Child
was extremely comfortable, happy, and well-adjusted in the Custodians’ home. The report
further stated that the Child was bonded to the Custodians in a unique way that the GAL had
not observed when the Child was with Mother.
{¶36} The GAL noted that the Child had spent his early formative months with the
Custodians and had now lived with them for more than a year. The GAL further noted that
the Child was only five years old, meaning that a significant portion of his formative years
had been spent in the Custodians’ home.
The Juvenile Court’s Decision
{¶37} In its judgment entry, the juvenile court acknowledged that the permanent
custody statute did not apply to the legal custody proceedings. The court nevertheless
borrowed from the permanent-custody statute the concept of whether a child could be placed
with a parent within a “reasonable time,” describing that standard as a “helpful
measurement.”
{¶38} The juvenile court then found, based upon clear and convincing evidence, that
the Child could not be placed with Mother within a reasonable time. The court further found,
by clear and convincing evidence, that granting legal custody to the Custodians was in Child’s
best interest.
Assignments of Error
{¶39} Mother raises three assignments of error:
{¶40} “I. THE TRIAL COURT ERRED BY APPLYING THE WRONG LEGAL
FRAMEWORK BY IMPORTING A PERMANENT-CUSTODY "REASONABLE
TIME" ANALYSIS AND USING A CLEAR-AND-CONVINCING-EVIDENCE
FORMULATION IN A LEGAL-CUSTODY DISPOSITION.”
{¶41} “II. THE JUVENILE COURT ABUSED ITS DISCRETION BY
ENTERING AN IMMEDIATE PERMANENT LEGAL-CUSTODY ORDER DESPITE
UNDISPUTED EVIDENCE OF MOTHER'S SUBSTANTIAL CASE-PLAN
COMPLIANCE AND THE STILL-ACTIVE REUNIFICATION POSTURE.”
{¶42} “III. THE JUVENILE COURT ERRED BY DELEGATING VISITATION
AND CONTACT DECISIONS TO THE LEGAL CUSTODIANS WITHOUT SETTING
ENFORCEABLE MINIMUM CONTACT OR RETAINING A MEANINGFUL
REVIEW MECHANISM WHERE PARENTS RETAIN RESIDUAL RIGHTS
INCLUDING REASONABLE VISITATION.”
I.
{¶43} In her first assignment of error, Mother contends the trial court applied the
wrong legal framework in awarding legal custody of Child to the Custodians. Specifically,
Mother argues that the juvenile court improperly relied upon the permanent-custody statute
and the best-interest provisions governing domestic-relations cases and expressly borrowed
from the permanent-custody statute the concept of whether Child could be placed with
Mother within a “reasonable time.”
Standard of Review
{¶44} We review a juvenile court's award of legal custody for an abuse of discretion.
In re J.W., 2021-Ohio-2917, ¶ 39 (5th Dist.).
{¶45} R.C. 2151.011(B)(31) defines “permanent custody” as:
A legal status that vests in a public children services agency or a private
child placing agency, all parental rights, duties, and obligations, including the
right to consent to adoption, and divests the natural parents or adoptive parents
of all parental rights, privileges, and obligations, including all residual rights
and obligations.
In contrast, R.C. 2151.011(B)(21) defines “legal custody” as:
A legal status that vests in the custodian the right to have physical care
and control of the child and to determine where and with whom the child shall
live, and the right and duty to protect, train, and discipline the child and to
provide the child with food, shelter, education, and medical care, all subject to
any residual parental rights, privileges, and responsibilities. An individual
granted legal custody shall exercise the rights and responsibilities personally
unless otherwise authorized by any section of the Revised Code or by the court.
{¶46} The distinction is significant. An award of legal custody does not divest a parent
of his or her residual parental rights, privileges, and responsibilities. R.C. 2151.011(B)(21); In
re C.R., 2006-Ohio-1191, ¶ 17, citing Hockstok v. Hockstok, 2002-Ohio-7208, ¶ 35. A parent may
also petition the court for a modification of custody in the future. In re C.R., 2006-Ohio-1191,
¶ 17; Hockstok, ¶ 36.
{¶47} A juvenile court “must have wide latitude in considering all the evidence,” and
a custody determination will not be reversed absent an abuse of discretion. Davis v. Flickinger,
77 Ohio St.3d 415, 418 (1997), citing Miller v. Miller, 37 Ohio St.3d 71 (1988); In re E.S., 2023-
Ohio-1009, ¶ 42 (5th Dist.). An appellate court does not reweigh the evidence or judge the
credibility of witnesses. Rather, our role is to determine whether there is relevant, competent,
and credible evidence upon which the finder of fact could base its judgment. Cross Truck
Equip., Co. v. The Joseph A. Jeffries, Co., 1982 Ohio App. LEXIS 15233 (5th Dist. Feb. 10, 1982).
Accordingly, a judgment supported by some competent and credible evidence going to all the
essential elements of the case will not be reversed as being against the manifest weight of the
evidence. C.E. Morris Co. v. Foley Constr., 54 Ohio St.2d 279 (1978).
{¶48} Unlike a permanent-custody proceeding, in which the juvenile court must make
the requisite findings by clear and convincing evidence, the applicable burden of proof in a
legal-custody proceeding is a preponderance of the evidence. In re E.S., 2023-Ohio-1009, ¶ 43
(5th Dist.); In re S.D., 2013-Ohio-5752, ¶ 32 (5th Dist.).
Application
{¶49} Mother argues the juvenile court applied the clear-and-convincing standard
applicable to permanent-custody proceedings rather than the preponderance-of-the-evidence
standard applicable to legal-custody proceedings. She also argues that the court improperly
imported the permanent-custody statutory framework into its legal-custody determination.
{¶50} The statutory scheme governing an award of legal custody does not establish a
specific test or set of factors that a juvenile court must apply. Instead, the court's determination
is governed by the best interest of the child. In re C.R., 2006-Ohio-1191; In re J.R., 2023-Ohio-
4766, ¶ 31 (5th Dist.); In re P.S., 2012-Ohio-3431 (5th Dist.). Because the General Assembly
did not establish specific factors in R.C. 2151.353 for determining whether legal custody is in
a child's best interest, we presume that the legislature did not intend to require consideration
of particular factors as a prerequisite to an award of legal custody. Thus, a juvenile court has
discretion to consider the circumstances relevant to the child's best interest. See In re A.W.,
2025-Ohio-3198, ¶ 46 (11th Dist.); In re M.L., 2026-Ohio-2267, ¶ 27 (6th Dist.); In re K.C.,
2025-Ohio-5047, ¶ 24 (8th Dist.).
{¶51} Courts nevertheless have recognized that the best-interest factors contained in
other statutes may provide useful guidance in determining whether legal custody is
appropriate. For example, R.C. 2151.414(D) sets forth factors applicable to permanent-
custody determinations. Although those factors govern permanent-custody proceedings,
Ohio courts, including this Court, have considered them as guidance in determining the best
interest of a child in legal-custody proceedings. In re A.B., 2026-Ohio-1960, ¶ 30 (5th Dist.);
In re S.D., 2013-Ohio-5752, ¶ 33 (5th Dist.); In re A.O., 2025-Ohio-4923, ¶ 20 (10th Dist.); In
re K.C., 2025-Ohio-5047, ¶ 24 (8th Dist.); In re K.H., 2016-Ohio-1330, ¶ 13 (9th Dist.). Those
factors include the child's interactions and interrelationships, the child's wishes, the child's
custodial history, the child's need for permanence, and whether any of the factors set forth in
R.C. 2151.414(E)(7) through (11) apply. In re J.W., 2021-Ohio-2917, ¶ 42 (5th Dist.).
{¶52} Similarly, the best-interest factors set forth in R.C. 3109.04(F)(1) may provide
guidance in a juvenile court's legal-custody determination. In re A.B., 2026-Ohio-1960, ¶ 30
(5th Dist.); In re M.T., 2020-Ohio-5493, ¶ 20 (9th Dist.). Those factors include the child's
adjustment to home, school, and community; the mental and physical health of the persons
involved; the parents' history of providing support and honoring companionship orders;
whether a parent intends to establish a residence outside Ohio; and certain indicia of violence,
abuse, or neglect in any household involved. R.C. 3109.04(F)(1).
{¶53} The distinction between the burdens of proof is nevertheless important. “Clear
and convincing” evidence is “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond
a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus; State v. Gwynne, 2023-Ohio-3851, ¶ 14. By
contrast, “[a] preponderance of evidence means the greater weight of evidence . . . [and] it is
only necessary that it be sufficient to destroy the equilibrium.” State v. Stumpf, 32 Ohio St.3d
95, 102 (1987), quoting Travelers' Ins. Co. of Hartford, Connecticut v. Gath, 118 Ohio St. 257, 261
(1928); State v. Nicholas, 2022-Ohio-4276, ¶ 29. The preponderance standard is therefore less
demanding than the clear-and-convincing standard applicable to permanent-custody
proceedings. In re M.L., 2026-Ohio-2267, ¶ 22 (6th Dist.), citing In re Nice, 141 Ohio App.3d
445, 455 (7th Dist.).
{¶54} Here, the juvenile court expressly found, “based upon clear and convincing
evidence,” that the Child could not be placed with Mother within a reasonable time and that
an award of legal custody to the Custodians was in the Child's best interest. To the extent the
juvenile court applied a clear-and-convincing burden of proof rather than the applicable
preponderance standard, Mother has not demonstrated prejudice. The clear-and-convincing
standard is more demanding than the preponderance standard. Thus, requiring the evidence
to satisfy the higher burden could not have adversely affected Mother in determining whether
legal custody was in the Child's best interest. There was no harm in the juvenile court’s error.
{¶55} Nor did the juvenile court's consideration of whether the Child could be placed
with Mother within a reasonable time necessarily constitute reversible error. Although the
permanent-custody statute does not govern a legal-custody determination, a juvenile court is
not prohibited from considering a child's prospects for placement with a parent as one
circumstance bearing upon the child's best interest. As noted above, the statutory scheme does
not prescribe an exclusive list of factors that a juvenile court must consider in determining
whether legal custody is in a child's best interest. In re C.R., 2006-Ohio-1191; In re J.R., 2023-
Ohio-1766, ¶ 31 (5th Dist.).
{¶56} The juvenile court's reference to whether the Child could be placed with Mother
within a reasonable time therefore did not, standing alone, establish that the court applied the
permanent-custody standard. Rather, the question of when, if ever, the Child could safely
return to Mother's care was relevant to the court's determination of what custody arrangement
was in the Child's best interest. The court was permitted to consider that circumstance along
with the other evidence concerning the Child's circumstances, relationships, custodial history,
need for stability and permanence, and Mother's progress.
{¶57} We therefore find no reversible error in the juvenile court's consideration of the
“reasonable time” concept or in its reliance upon the clear-and-convincing standard. Mother
has not demonstrated that either affected the outcome of the legal-custody determination to
her prejudice.
{¶58} Accordingly, Mother's first assignment of error is overruled.
II.
{¶59} In her second assignment of error, Mother argues that the trial court should
have extended the period for reunification. Specifically, Mother contends that an extension
pursuant to R.C. 2151.415(D) was available and would have been in the Child's best interest
because she had made significant progress on her case plan and there was reasonable cause
to believe reunification could be achieved within the extension period.
Analysis
{¶60} Mother did not file a motion requesting an extension of time to work toward
reunification. She did, however, request the court extend the time during her testimony at the
legal custody hearing. Nevertheless, she argues the juvenile court should have granted an
extension pursuant to R.C. 2151.415(D).
{¶61} R.C. 2151.415(D)(4) and R.C. 2151.353(G) limit the duration of temporary
custody. Under those provisions, a juvenile court “shall not order an existing temporary
custody order to continue beyond two years after the date on which the complaint was filed
or the child was first placed in shelter care, whichever date is earlier.” Here, the Child was
placed in the Agency's temporary custody on January 13, 2025. The Custodians filed their
motion for legal custody on February 10, 2026, approximately thirteen months after the Child
entered temporary custody, leaving approximately eleven months before the statutory
expiration of temporary custody. The trial court granted one six-month extension on February
17, 2026.
{¶62} By the time the legal-custody hearing commenced on May 26, 2026, 232 days,
or approximately seven and one-half months, remained before temporary custody would
expire by operation-of-law on January 13, 2027.
{¶63} The evidence presented at the hearing did not support another extension of
temporary custody under R.C. 2151.415(D). An extension is appropriate only when the
statutory requirements are satisfied, including that the extension is in the child's best interest,
the parent has made significant progress on the case plan, and there is reasonable cause to
believe that reunification or another permanent placement can be achieved within the
extension period.
{¶64} The record supports the juvenile court's conclusion that those requirements
were not satisfied. The court expressly recognized Mother's efforts, finding that she had
conscientiously worked to complete her case plan and had gone beyond its requirements. The
court nevertheless concluded that Mother's progress did not resolve the circumstances
preventing reunification.
{¶65} In particular, the court considered the circumstances surrounding C.S.'s sexual
abuse of the Child. At the time of the hearing, C.S. had been returned to Mother's custody.
The evidence from the Child's counselor established that, given the Child's age, processing of
sexual abuse could be a lengthy process. The evidence further established that C.S. had not
processed the events, had not acknowledged sexually abusing the Child, and had refused to
disclose whether he himself had been the victim of sexual abuse.
{¶66} The juvenile court, therefore, recognized that it could not determine when the
children would be ready to be placed together in Mother's custody. Significantly, no evidence
established that the circumstances necessary for reunification would change within the
approximate seven and one-half months remaining before the expiration of temporary
custody. Mother's substantial progress on her case plan did not, standing alone, establish
reasonable cause to believe that reunification could be accomplished within that period.
{¶67} The court was entitled to consider the uncertainty surrounding the children's
ability to safely resume living together with Mother. Given the complexity of the sexual-abuse
issues, the Child's young age, the ongoing counseling and treatment needs, and the limited
time remaining before temporary custody would expire, the juvenile court reasonably
concluded that there was not reasonable cause to believe reunification could be achieved
within the available extension period.
{¶68} Although Mother had made significant progress on her case plan, an extension
under R.C. 2151.415(D) requires more than evidence of parental progress. The evidence must
also establish that reunification can reasonably be achieved within the extension period and
that an extension is in the child's best interest. On this record, the juvenile court could
reasonably conclude that those requirements had not been established.
{¶69} Accordingly, competent and credible evidence supported the juvenile court's
determination that another extension of temporary custody was not in Child's best interest
and that an award of legal custody to the Custodians was warranted.
{¶70} Mother's second assignment of error is overruled.
III.
{¶71} In her third assignment of error, Mother argues that the trial court failed to
establish a definite minimum visitation schedule. Specifically, Mother contends that the
juvenile court provided that all contact between the Child and Mother would occur as Mother
and the Custodians agreed and that, if they could not agree, the Custodians would have
“ultimate authority” to determine the terms of contact. Mother further argues that the trial
court imposed the same discretionary arrangement concerning contact between C.S. and the
Child.
{¶72} We first note that this case involves an award of legal custody, not permanent
custody. Legal custody does not divest a parent of his or her residual parental rights,
privileges, and responsibilities. In re C.R., 2006-Ohio-1191. Thus, a parent who has lost legal
custody, but whose parental rights have not been terminated, retains residual parental rights,
including the privilege of reasonable visitation. In re K.D., 2017-Ohio-4161, ¶ 27 (9th Dist.).
A parent may also petition the court for a modification of custody or visitation in the future.
In re L.S., 2012-Ohio-3794 (5th Dist.).
{¶73} A trial court enjoys broad discretion in matters concerning visitation by a non-
residential parent. Appleby v. Appleby, 24 Ohio St.3d 39, 41 (1986). Nevertheless, a non-
residential parent's right to visitation is a natural right that should be denied only under
extraordinary circumstances, such as the parent's unfitness or a significant risk of harm to the
child. Cremeans v. Cheadle, 2008-Ohio-2148 (5th Dist.). We review a trial court's visitation
determination for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An
abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 ( 983); In re X.G., 2018-Ohio-
4890, ¶ 26 (5th Dist.).
{¶74} Here, the evidence established that Mother made significant progress toward
reunification. Although the trial court properly determined that legal custody should be
awarded to the Custodians, that determination did not eliminate Mother's residual parental
rights or her privilege of reasonable visitation. Indeed, the record does not establish that the
Child's best interest required eliminating or substantially restricting Mother's visitation. Nor
did the trial court identify a reason why Mother's visitation should be left subject to the
Custodians' unilateral determination.
{¶75} The trial court's order provides that contact between Mother and the Child shall
occur as Mother and the Custodians agree and that, if they cannot agree, the Custodians have
“ultimate authority” to determine the terms of contact. Although a trial court may grant
custodians discretion to establish reasonable visitation arrangements, an order that effectively
permits the custodians to veto a parent's exercise of visitation does not adequately protect the
parent's residual right to reasonable visitation. In re K.D., 2017-Ohio-4161, ¶ 28 (9th Dist.).
{¶76} Here, the order establishes no minimum frequency, duration, or other
meaningful parameters for Mother's visitation. It does not specify whether Mother is entitled
to visitation daily, weekly, or monthly, nor does it establish the duration of any visit. Instead,
Mother's ability to exercise visitation depends entirely upon agreement with the Custodians,
subject to the Custodians' “ultimate authority” if an agreement cannot be reached.
{¶77} Such an arrangement provides Mother with no definite opportunity to exercise
her residual right of reasonable visitation. It also leaves the parties without an objective
standard by which to resolve disagreements concerning the frequency or duration of
visitation. In effect, the order permits the Custodians to determine whether and when Mother
may exercise visitation, rather than establishing a reasonable visitation schedule subject to the
Custodians' authority to address appropriate logistical details.
{¶78} We, therefore, conclude that the visitation provision concerning Mother is
unreasonable and constitutes an abuse of discretion. The trial court properly awarded legal
custody to the Custodians, but that award did not relieve the court of its obligation to protect
Mother's residual parental rights, including her privilege of reasonable visitation.
{¶79} The situation concerning contact between C.S. and the Child is materially
different. The evidence established that C.S. sexually abused the Child and that the Child had
not yet processed that trauma. The Child's counselor testified that the process could be lengthy
and could not predict when contact between the children would be appropriate. Given that
evidence, the trial court acted within its discretion in restricting contact between C.S. and the
Child until the mental-health professionals determine that such contact may safely begin. We,
therefore, find no abuse of discretion in that portion of the trial court's order.
{¶80} Accordingly, Mother's third assignment of error is sustained in part and
overruled in part.
{¶81} The judgment of the Holmes County Court of Common Pleas, Juvenile
Division, is affirmed in part and overruled in part. We affirm the trial court's award of legal
custody to the Custodians and its restriction on contact between C.S. and the Child. We
reverse only that portion of the judgment governing Mother's visitation with the Child and
remand this matter to the trial court solely for the limited purpose of establishing a definite
minimum visitation schedule and other meaningful parameters governing Mother's
reasonable visitation with the Child. In all other respects, the judgment is affirmed. Costs to
be divided and paid equally by Mother and the Agency.
By: Popham, J.
King, P.J. and
Hoffman, J., concur