Reynolds v. Goll

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 121

.]




               REYNOLDS ET AL., APPELLEES, v. GOLL, APPELLANT.
                     [Cite as Reynolds v. Goll, 

1996-Ohio-153

.]
Juvenile court—Custody proceeding under R.C. 2151.23—Custody awarded to
        nonparent—Court’s finding of abandonment and unsuitability supported
        by competent evident—Best interests of child—R.C. 3109.04.
     (No. 94-1464—Submitted December 5, 1995—Decided March 4, 1996.)
     APPEAL from the Court of Appeals for Lorain County, No. 91CA005140.
                                  __________________
        {¶ 1} This case involves the custody dispute of Diana Katherine Goll, now
age eleven, between her biological father, Robert Goll, defendant-appellant, and
plaintiffs-appellees, Paul A. and Virginia L. Reynolds, who have cared for Diana
almost since her birth. The circumstances leading to this dispute are as follows.
Shortly after Diana was born, on September 5, 1984, her mother became ill and was
diagnosed with cancer. Her father had difficulty coping with his wife’s illness as
well as caring for Diana and her three siblings, then ages fourteen, twelve and
seven. At the time, Mr. Goll worked at St. Joseph’s Hospital as a security officer
and as a part-time police officer for the Vermilion Police Department. Virginia
Reynolds, an RN who worked with Goll at the hospital, offered to help care for
Diana. Mr. Goll accepted this offer and Diana was placed with Mr. and Mrs.
Reynolds when she was just one week old. Diana was initially cared for by the
Reynoldses on weekends and by another couple during the week. However, due to
the other couple’s marital problems, the Reynoldses took full-time responsibility of
Diana in December 1984.
        {¶ 2} Diana’s mother died on March 17, 1986. Prior to her mother’s death,
Diana visited her biological family just three times: during the Christmas holidays
in 1984, in February 1985, and in March 1985. Just prior to her death, on February
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1, 1986, Diana’s mother asked Mrs. Reynolds whether she and her husband would
raise Diana. Mrs. Reynolds told Mr. Goll she was willing to do this. Mr. Goll
agreed to have the Reynolds care for Diana. However, according to Mr. Goll, he
viewed this as a temporary arrangement.
       {¶ 3} Nevertheless, from the time of Diana’s mother’s death in March 1986
until at least the commencement of this custody proceeding in July 1989, Mr. Goll
visited with Diana only five times. For the first eight months following the death
of his wife, Mr. Goll had virtually no contact with Diana. The first contact he had
with Diana was in November 1986, when he remarried and requested that Diana
attend the wedding. Mr. Goll, who states that he attempted to visit Diana more
often but was told by the Reynoldses that Diana was unavailable, concedes that he
only tried to visit her three additional times but was turned down. He also concedes
that he never phoned Diana. Although Mr. Goll provided medical insurance for
Diana, he never offered the Reynoldses any other financial support for Diana. He
also allowed the Reynoldses to claim Diana as an exemption for income-tax
purposes.
       {¶ 4} At one point, Mrs. Reynolds told Mr. Goll that she and her husband
wanted to adopt Diana. However, she did not further pursue it because Mr. Goll
indicated that he might want Diana back and she feared losing Diana. Instead, the
Reynoldses brought this custody action, pursuant to R.C. 2151.23, in July 1989.
The trial court set up a temporary visitation schedule, which it appears Mr. Goll
adhered to. The court also appointed a guardian ad litem who issued a report
indicating that Mr. Goll had forfeited his rights to Diana through abandonment.
The guardian ad litem concluded that it is in the best interests of the child that she
remain with the Reynoldses subject to liberal visitation by Mr. Goll.
       {¶ 5} Following a two-day trial, the court issued findings of fact and
conclusions of law and awarded custody of Diana to the Reynoldses. The court of
appeals reversed and remanded on the ground that the trial court incorrectly applied




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the “best interest” test without also considering the suitability of the natural parent.
On remand, the court, by agreement of the parties, reconsidered the evidence
already presented and issued new findings of fact and conclusions of law. The court
found that Mr. Goll is unsuitable on the ground that he abandoned his child by his
lack of interest in her. Furthermore, the court found that based upon the testimony
of the psychologist, an award of Diana’s custody to the natural father would be
detrimental to her best interests. The court of appeals affirmed.
          {¶ 6} The cause is now before this court upon allowance of a discretionary
appeal.
                                __________________
          Thomas H. Sanborn, for appellant.
          Douglas M. Brill, for appellees.
                                __________________
          FRANCIS E. SWEENEY, SR., J.
          {¶ 7} Appellant, the biological father of Diana Goll, challenges the trial
court’s award of custody of his daughter to Paul and Virginia Reynolds. For the
reasons that follow, we find that the trial court was warranted in its grant of custody
of the minor to the Reynoldses. Consequently, we affirm the court of appeals.
          {¶ 8} At the outset, we note that this case is limited to a child custody
dispute initiated in juvenile court pursuant to R.C. 2151.23 between biological
parents and non-biological “parents.”         In such a proceeding, we have long
recognized that “the welfare of the minor is first to be considered.” Clark v. Bayer
(1877), 

32 Ohio St. 299

, 310. We have further stated that parents who are deemed
suitable are considered to have the “paramount” right to custody of their minor
children. In re Perales (1977), 

52 Ohio St.2d 89, 97

, 

6 O.O.3d 293, 297

, 

369 N.E.2d 1047, 1051-1052

. However, in balancing the interests of both the parent
and child, the right of custody by the biological parents is not absolute and can be
forfeited. Thus, “parents may be denied custody only if the preponderance of the




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evidence indicates abandonment, contractual relinquishment of custody, total
inability to provide care or support, or that the parent is otherwise unsuitable--that
is, an award of custody would be detrimental to the child.” 

Id. at 98

, 

6 O.O.3d at 297

, 

369 N.E.2d at 1052

. The trial court here determined that appellant, through
lack of interest, abandoned his daughter and was unsuitable. It then held that it is
in the minor’s best interests that she remain with appellees rather than be turned
over to her father. The court of appeals upheld the trial court’s decision.
       {¶ 9} Appellant argues that the placement of his daughter with appellees
during a time of need does not constitute abandonment and should not render him
an unsuitable parent. Whether a parent relinquishes rights to custody is a factual
determination to be made by the trier of fact and should not be disturbed if
supported by some reliable, credible evidence. Masitto v. Masitto (1986), 

22 Ohio St.3d 63, 66

, 22 OBR 81, 83, 

488 N.E.2d 857, 860

.
       {¶ 10} In this case, the trial court’s finding of abandonment and
unsuitability was supported by competent evidence. The trial court heard extensive
testimony over the course of a two-day trial. Both sides presented several witnesses
on their behalf. While we recognize that appellant was initially placed in a very
difficult position of trying to cope with the illness and ultimate death of his wife,
we nonetheless believe that there was evidence to support the trial court’s
determination that appellant, through his course of conduct, abandoned his
daughter. In reaching this decision, we are mindful of the fact that the trial court,
after carefully listening to the testimony of the parties and witnesses, is in the best
position to judge their credibility and to determine whether a parent has abandoned
his or her child. Thus, we adhere to the established rule that “[i]n proceedings
involving the custody and welfare of children the power of the trial court to exercise
discretion is peculiarly important.” Trickey v. Trickey (1952), 

158 Ohio St. 9

, 13,

47 O.O. 481

, 483, 

106 N.E.2d 772

, 774. As we stated in Miller v. Miller (1988),

37 Ohio St.3d 71, 74

, 

523 N.E.2d 846

, 849:




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       “The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court’s determination will have on the lives of the parties concerned.            The
knowledge a trial court gains through observing the witnesses and the parties in a
custody proceeding cannot be conveyed to a reviewing court by a printed record.
Trickey v. Trickey (1952), 

158 Ohio St. 9

, 13, 

47 O.O. 481

, 483, 

106 N.E.2d 772

,
774. In this regard, the reviewing court in such proceedings should be guided by
the presumption that the trial court’s findings were indeed correct. See Seasons
Coal Co. v. Cleveland (1984), 

10 Ohio St.3d 77, 80

, 10 OBR 408, 410, 

461 N.E.2d 1273, 1276

.”
       {¶ 11} Not only was there evidence to support the finding of abandonment
and unsuitability of appellant, but there was also evidence to support the trial
court’s decision that it is in the best interests of Diana, age eleven, to remain with
appellees. The guardian ad litem, court investigator and the psychologist, all of
whom testified in this case, agreed that appellees, who have cared for Diana since
she was one week old, should be granted custody. They also acknowledged that
appellant should be granted liberal visitation. In determining the best interests of
the minor, under R.C. 3109.04(C) as it was in effect at the time, the trial court acted
within its discretion by awarding custody to appellees.
       {¶ 12} Accordingly, the judgment of the court of appeals is affirmed and
the cause remanded to the trial court for further proceedings to determine a
visitation schedule.
                                                                  Judgment affirmed.
       MOYER, C.J., WRIGHT, RESNICK, PFEIFER and CHRISTLEY, JJ., concur.
       DOUGLAS, J., not participating.
       JUDITH A. CHRISTLEY, J., of the Eleventh Appellate District, sitting for
COOK, J.
                                __________________




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