Brunner v. Stark Cty. Dept. of Job & Family Servs.

2011 Ohio 271

Opinion

[Cite as Brunner v. Stark Cty. Dept. of Job & Family Servs., 2011-Ohio-271.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

SHELLY ANN BRUNNER JUDGES: Hon. Julia A. Edwards, P.J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs-

STARK COUNTY DEPARTMENT OF Case No. 2010CA00047 JOB AND FAMILY SERVICES, ET AL.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2009JCV01399

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 24, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

JOY S. WAGNER LISA A. LOUY 507 West Park Avenue 221 Third Street, SE Barberton, OH 44203 Canton, OH 44702 Stark County, Case No. 2010CA00047 2

Farmer, J.

{¶1} On August 7, 2009, appellee, Stark County Department of Job and Family

Services, filed a complaint for the temporary custody of two minor children, alleging

abuse, neglect, and/or dependency (Case No. 2009JCV01020). On September 2,

2009, the children were placed in appellee's temporary custody. Also on September 2,

2009, appellant, Shelly'ann Brunner, the maternal great-aunt of the two minor children,

filed a motion for joinder and a motion for legal custody in the case. By judgment entry

filed October 29, 2009, appellant's motion for joinder was denied. Appellant withdrew

her motion for legal custody with the understanding that she could re-file the motion if

appellee sought permanent custody.

{¶2} On October 29, 2009, appellant filed a complaint for companionship of the

minor children pursuant to R.C. 3109.12 in the Court of Common Pleas of Stark County,

Juvenile Division (Case No. 2009JCV01399). On January 12, 2010, appellee filed a

motion to dismiss the complaint, arguing appellant was precluded from pursuing the

companionship complaint since she had been denied joinder in Case No.

2009JCV01020. By judgment entry filed February 1, 2010, the trial court granted

appellee's motion and dismissed appellant's complaint.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S

COMPLAINT FOR COMPANIONSHIP AS A MATTER OF LAW." Stark County, Case No. 2010CA00047 3

{¶5} Appellant claims the trial court erred in dismissing her complaint for

companionship pursuant to R.C. 3109.12. Specifically, appellant claims her rights

under R.C. 3109.12 are not preempted by the pending abuse, neglect, dependency

action (Case No. 2009JCV01020) under the exclusive jurisdiction afforded the trial court

(R.C. 2151.23(A)(1) and R.C. 2151.353).

{¶6} R.C. 3109.12 governs "[v]isitation rights of grandparents and other

relatives when child's mother unmarried." Subsection (A) provides in pertinent part, "[i]f

a child is born to an unmarried woman, the parents of the woman and any relative of the

woman may file a complaint requesting the court of common pleas of the county in

which the child resides to grant them reasonable companionship or visitation rights with

the child."

{¶7} Appellant attempted to seek visitation/legal custody through the abuse,

neglect, dependency case, but her motion for joinder was denied. In its judgment entry

filed February 1, 2010, the trial court viewed the companionship complaint as an

attempt to gain "back-door entry" into the abuse, neglect, dependency action:

{¶8} "As noted in R.C. §2151.353(E)(1), once the court took jurisdiction of the

children in case 2009-JCV-01020 and completed disposition in that case, it retains

jurisdiction until the children reach the age of 18. Based on that, 2009-JCV-01020 is the

controlling case for the [H] children. Ms. Brunner cannot use R.C. §3109.12 to file a

new case and, thereby, 'backdoor' or 'end run' the denial of intervention in 2009-JCV-

01020." Stark County, Case No. 2010CA00047 4

{¶9} The trial court then proceeded to rule that a companionship order in the

case would not be in the best interest of the children:

{¶10} "The Stark County Department of Job and Family Services has taken

temporary custody of these children and filed a case plan. They are mandated to

attempt to reunify the children with the parents. It would disrupt that attempted

reunification if every relative of these children had the option of filing a separate case in

the juvenile court seeking companionship or custody. The children could become the

subjects of multiple orders of visitation. SCDJFS and foster parents would then be

required to facilitate multiple visits with relatives rather than focusing their energy on the

parental reunification plan.

{¶11} "The Court has broad authority under R.C. §2151.353 to make orders in

the best interest of children who have been found dependent, abused, or neglected.

That authority continues until the children are 18. Just because Ms. Brunner was

denied intervention at the current time does not mean that, at some time in the future,

she would not be granted intervention or, even without intervening, that she be granted

companionship or custody of the children. See In Re: C.C. 2007-WL-2069497 (Ohio

App. 2 Dist.)."

{¶12} Appellant argues the trial court's sua sponte decision on best interests

was made without an evidentiary hearing, and the companionship statute, R.C.

3109.12(B), accepts and acknowledges that the two actions can be maintained:

{¶13} "Except as provided in division (E)(6) of section 3113.31 of the Revised

Code, if the court, pursuant to this section, grants parenting time rights or

companionship or visitation rights with respect to any child, it shall not require the public Stark County, Case No. 2010CA00047 5

children services agency to provide supervision of or other services related to that

parent's exercise of parenting time rights with the child or that person's exercise of

companionship or visitation rights with the child. This section does not limit the power of

a juvenile court pursuant to Chapter 2151. of the Revised Code to issue orders with

respect to children who are alleged to be abused, neglected, or dependent children or to

make dispositions of children who are adjudicated abused, neglected, or dependent

children or of a common pleas court to issue orders pursuant to section 3113.31 of the

Revised Code."

{¶14} We note the companionship case was initiated in the Court of Common

Pleas, Juvenile Division, and was given a juvenile division number (2009JCV01399).

The action was brought under R.C. Chapter 3109 which is included in the Domestic

Relations - Children title.1 The specific statutory language of R.C. 3109.12 states an

action may be filed "in the court of common pleas of the county in which the child

resides." Juv.R. 10(A) permits a filing over any matter "which the juvenile court is given

jurisdiction by the Revised Code." Juv.R. 13 (B)(2)(c) provides the following:

{¶15} "(2) Upon the filing of an abuse, neglect, or dependency complaint, any

party may by motion request that the court issue any of the following temporary orders

to protect the best interest of the child:

{¶16} "(c) An order granting, limiting, or eliminating visitation rights with respect

to the child."

1 In Stark County, the specific designation pursuant to R.C. 2301.03(H) is "Division of Domestic Relations." Loc.R. 3 of the Court of Common Pleas of Stark County designates the division as the "Family Court Division (Domestic Relations and Juvenile cases)." Stark County, Case No. 2010CA00047 6

{¶17} Using these rules as a template, we conclude the trial court was correct in

finding that the initial complaint in Case No. 2009JCV01020 established exclusive

jurisdiction to that complaint. However, there is no prohibition in filing a complaint

pursuant to R.C. 3109.12 in the same court, despite the fact that said statute is in the

"Domestic Relations" chapter and the jurisdiction over the children is in the Juvenile

Division with the filing of the R.C. 2151.353 complaint.

{¶18} We find no bar to the filing of an R.C. 3109.12 action when an R.C.

2151.353 action is pending. Appellee argues to permit these filings when an R.C.

2151.353 complaint is pending could possibly cause a conflicting order. We disagree.

The trial court can consolidate both actions so conflicts do not arise. This is especially

true given the structure of the Common Pleas Court in Stark County.

{¶19} Given that access to the courts is permitted via two statutory sections,

appellant can legally use a "back door" that is statutorily granted without fear of

dismissal.

{¶20} The sole assignment of error is granted. Stark County, Case No. 2010CA00047 7

{¶21} The judgment of the Court of Common Pleas of Stark County, Ohio,

Juvenile Division is hereby reversed, and the matter is remanded to said court for

hearing on the R.C. 3109.12 request.

By Farmer, J.

Wise, J. concur and

Edwards, P.J., dissents.

s/ Sheila G. Farmer_ _____________

_s/John W. Wise ________________

_______________ _________________

JUDGES

SGF/sg 129 Stark County, Case No. 2010CA00047 8

EDWARDS, J., DISSENTING OPINION

{¶22} I respectfully dissent from the majority as to the analysis and disposition of

this case.

{¶23} I find that the Juvenile Court does not have jurisdiction to consider a

complaint filed pursuant to R.C. 3109.12.

{¶24} “Juvenile Courts are courts of limited jurisdiction and their powers are

created by statute.” Carnes v. Kemp, 104 Ohio St.3d 629, 821 N.E.2d 180, 2004-Ohio-

7107 at ¶25.2 See also In the Matter of S.M., Madison App. No. CA2009-02-008, 2009-

Ohio-4677 at ¶14. R.C. 2151.07, titled “Creation and powers of juvenile court;

assignment of judges,” states, “The juvenile court has jurisdiction…conferred in

Chapters 2151. and 2152. of the Revised Code.” R.C. 2151.23 specifically enumerates

the jurisdictional authority of the juvenile court. Nowhere in R.C. 2151.23 does it

indicate that the juvenile court has jurisdiction to hear complaints for companionship

filed under R.C. 3109.12.

{¶25} I concede that the language in R.C. 3109.12 indicates that if a child is born

to an unmarried woman, any relative of the woman may file a complaint requesting the

court of common pleas of the county in which the child resides to grant them

companionship. I also concede that the juvenile court is a division of the court of

common pleas. But I find that R.C. 3109.12 cannot give jurisdiction to a juvenile court.

That can only come from R.C. 2151.23 or anywhere in 2151. or 2152.

{¶26} R.C. 2151.23(A)(2), subject to divisions (G) and (V) of R.C. 2301.03,

confers jurisdiction on the juvenile court to determine custody of any child not a ward of

another court of this state. One can make the argument that companionship is part and 2 This statement is made in the dissenting opinion of Justice Lundberg Stratton. Stark County, Case No. 2010CA00047 9

parcel of a custody determination and, therefore, the juvenile court has jurisdiction over

a complaint for companionship. But, the Ohio Supreme Court in In re Gibson (1991), 61

Ohio St.3d 168, 171, 573 N.E.2d 1074 found that “[t]he complaint of a grandparent

seeking only visitation with a grandchild may not be determined by the juvenile court

pursuant to its authority to determine ‘custody’ of children under R.C. 2151.23(A)(2). “

{¶27} Even if I were to agree that an R.C. 3109.12 complaint could be filed in

juvenile court, I would find that all legal matters at this time should be filed and

determined in the dependency action. The juvenile court has exclusive jurisdiction of a

dependent child. R.C. 2151.23(A)(1). And, I find the language of R.C. 3109.12 actually

defers to the juvenile court’s authority when it states, “This section does not limit the

power of a juvenile court pursuant to Chapter 2151 of the Revised Code to issue orders

with respect to children who are alleged to be abused, neglected or dependent children

or to make dispositions of children who are adjudicated abused, neglected or dependent

children or of a common pleas court to issue orders pursuant to Section 3113.31 of the

Revised Code.”

{¶28} I find this language to clearly defer to a dependency action in juvenile

court.

{¶29} For the reasons stated above, I would affirm the decision of the trial court.

____________________________________

Judge Julie A. Edwards

JAE/rmn Stark County, Case No. 2010CA00047 10

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

SHELLY ANN BRUNNER : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : STARK COUNTY DEPARTMENT OF : JOB AND FAMILY SERVICES, ET AL. : : Defendants-Appellees : CASE NO. 2010CA00047

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

judgment of the Court of Common Pleas of Stark County, Ohio, Juvenile Division is

reversed, and the matter is remanded to said court for hearing on the R.C. 3109.12

request. Costs to appellee Stark County Department of Job and Family Services.

___________________________________