In re J.C.

2012 Ohio 1113

• Court: Ohio Court of Appeals
• Decided: March 16, 2012
• Docket: 11CAF080072
• Status: Published

Opinion

[Cite as In re J.C., 2012-Ohio-1113.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. J.C., AM.C., AS.C. : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. DEPENDENT CHILDREN : : Case No. 11CAF080072 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 10-03-0705-02-C, 10-03-0706-02-C, 10-03-0707-03-C

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 16, 2012

APPEARANCES:

For Appellant For Appellee

WILLIAM T. CRAMER KATHERYN L. MUNGER 470 Olde Worthington Rd., Suite 200 140 North Sandusky St., 3rd Floor Westerville, OH 43082 Delaware, OH 43015

Guardian ad Litem for Father Guardian ad Litem for Children

SCOTT GORDON JENNIFER MYERS 40 North Sandusky St., Suite 300 300 East Broad St., Suite 350 Delaware, OH 43015 Columbus, OH 43215

For Mother For Maternal Grandmother

DONALD G. WORLEY THOMAS WALDECK 43 East Central Ave. 61 North Sandusky St., 2nd Floor Delaware, OH 43015 Delaware, OH 43015 Delaware County, Case No. 11CAF080072 2

Farmer, J.

{¶1} On March 16, 2010, appellee, the Delaware County Department of Job

and Family Services, filed a complaint alleging J.C. born May 24, 2000, AM.C. born

November 1, 2002, and AS.C. born November 1, 2002, to be abused, neglected, or

dependent. Mother of the children is April Lewis; father is appellant, Mark Cromlish.

The children were placed in the custody of the maternal grandmother, Debbie Yates.

{¶2} On June 3, 2010, the trial court found the children to be dependent.

{¶3} On January 28, 2011, Ms. Yates filed a motion for legal custody of the

children. On April 25, 2011, appellant filed a motion for visitation. Hearings were held

on May 17 2011 and June 20 and 23, 2011. By judgment entry filed July 12, 2011, the

trial court granted Ms. Yates's motion for legal custody, and granted appellant visitation

rights. The trial court terminated the case, but retained jurisdiction over parenting

issues such as support, custody, visitation, and parenting time via a pending paternity

case, Case No. 09-07-1857.

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

consideration. Assignment of error is as follows:

I

{¶5} "THE JUVENILE COURT SOUGHT TO DENY FATHER HIS

STATUTORY RIGHT TO APPOINTED COUNSEL UNDER R.C. 2151.352 BY

IMPROPERLY TRANSFERRING JURISDICTION OVER THIS

ABUSE/NEGLECT/DEPENDENCY CASE TO A RELATED PATERNITY/SUPPORT

CASE." Delaware County, Case No. 11CAF080072 3

{¶6} Appellant claims the trial court erred in transferring issues of visitation and

custody in the abuse/neglect/dependency case to the pending paternity/support case

pursuant to R.C. Chapter 3111. Appellant claims this sua sponte transfer abrogated his

right to appointed counsel. We disagree.

{¶7} In its judgment entry filed July 12, 2011, the trial court granted legal

custody of the children to the maternal grandmother, Deborah Yates, with visitation and

telephone contact granted to appellant. The trial court then closed the

abuse/neglect/dependency case as follows:

{¶8} "6. These cases are hereby terminated, except this Court will retain

jurisdiction over all parenting issues, e.g., support, custody, visitation and parenting

time. That jurisdiction will be exercised under Case No. 09-07-1857, styled as April

Lewis, Plaintiff, v. Mark Cromlish, Defendant. Deborah Yates shall be added as a Third-

Party Defendant under that existing case. Child support continues to be redirected to

Deborah Yates."

{¶9} Juv.R. 4 provides for appointed counsel in an abuse/neglect/dependency

case, but not in a paternity case under R.C. Chapter 3111:

{¶10} "(A) Every party shall have the right to be represented by counsel and

every child, parent, custodian, or other person in loco parentis the right to appointed

counsel if indigent. These rights shall arise when a person becomes a party to a

juvenile court proceeding. When the complaint alleges that a child is an abused child,

the court must appoint an attorney to represent the interests of the child. This rule shall

not be construed to provide for a right to appointed counsel in cases in which that right

is not otherwise provided for by constitution or statute." Delaware County, Case No. 11CAF080072 4

{¶11} The scope of the juvenile rules is limited to proceedings within the

jurisdiction of the juvenile court [Juv.R. 1(A)]. A party is defined as a child's custodian or

guardian under Juv.R. 2(H) and (N) as follows:

{¶12} "(H) 'Custodian' means a person who has legal custody of a child or a

public children's services agency or private child-placing agency that has permanent,

temporary, or legal custody of a child.

{¶13} "(N) 'Guardian' means a person, association, or corporation that is granted

authority by a probate court pursuant to Chapter 2111 of the Revised Code to exercise

parental rights over a child to the extent provided in the court's order and subject to the

residual parental rights of the child's parents."

{¶14} "Legal custody," "permanent custody," and "residual parental rights" are

defined in Juv.R. 2(V), (Z), and (II) as follows:

{¶15} "(V) 'Legal custody' means 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 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.

{¶16} "(Z) 'Permanent custody' means a legal status that vests in a public

children's 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 any and all parental rights, privileges, and obligations,

including all residual rights and obligations. Delaware County, Case No. 11CAF080072 5

{¶17} "(II) 'Residual parental rights, privileges, and responsibilities' means those

rights, privileges, and responsibilities remaining with the natural parent after the transfer

of legal custody of the child, including but not limited to the privilege of reasonable

visitation, consent to adoption, the privilege to determine the child's religious affiliation,

and the responsibility for support."

{¶18} In its judgment entry filed July 12, 2011, the trial court awarded legal

custody to Ms. Yates pursuant to R.C. 2151.42 which was a final appealable order, but

was subject to the continuing jurisdiction of the trial court. R.C. 2151.42(B) provides the

following:

{¶19} "An order of disposition issued under division (A)(3) of section 2151.353,

division (A)(3) of section 2151.415, or section 2151.417 of the Revised Code granting

legal custody of a child to a person is intended to be permanent in nature. A court shall

not modify or terminate an order granting legal custody of a child unless it finds, based

on facts that have arisen since the order was issued or that were unknown to the court

at that time, that a change has occurred in the circumstances of the child or the person

who was granted legal custody, and that modification or termination of the order is

necessary to serve the best interest of the child."

{¶20} Pursuant to the juvenile rules, the residual rights of appellant remain with

the juvenile court in a case pursuant to R.C. Chapter 2151, et seq.

{¶21} The gravamen of this appeal is whether the trial court can relinquish its

responsibility to the domestic relations court on the issues of visitation and support.

{¶22} Pursuant to R.C. 3111.16, the domestic relations court has continuing

jurisdiction in a paternity action: Delaware County, Case No. 11CAF080072 6

{¶23} "The court has continuing jurisdiction to modify or revoke a judgment or

order issued under sections 3111.01 to 3111.18 of the Revised Code to provide for

future education and support and a judgment or order issued with respect to matters

listed in divisions (C) and (D) of section 3111.13 and division (B) of section 3111.15 of

the Revised Code, except that a court entering a judgment or order for the purchase of

an annuity under division (D) of section 3111.13 of the Revised Code may specify that

the judgment or order may not be modified or revoked."

{¶24} R.C. 3111.15 governs enforcement of support order. Subsection (A)

states the following:

{¶25} "If the existence of the father and child relationship is declared or if

paternity or a duty of support has been adjudicated under sections 3111.01 to 3111.18

of the Revised Code or under prior law, the obligation of the father may be enforced in

the same or other proceedings by the mother, the child, or the public authority that has

furnished or may furnish the reasonable expenses of pregnancy, confinement,

education, support, or funeral, or by any other person, including a private agency, to the

extent that any of them may furnish, has furnished, or is furnishing these expenses."

{¶26} We have two courts with the right to retain jurisdiction, but only one court

(juvenile court) that is required to appoint counsel for a parent except "in cases in which

that right is not otherwise provided for by constitution or statute." Juv.R. 4(A).

{¶27} Upon review, we conclude that even in decisions as to visitation and

support under the juvenile rules, appellant would not have been entitled to appointed

counsel; therefore, the trial court did not abuse appellant's right to counsel in

relinquishing its jurisdiction over visitation and support.

{¶28} The sole assignment of error is denied. Delaware County, Case No. 11CAF080072 7

{¶29} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.

s/ Sheila G. Farmer_____________

s/ Patricia A. Delaney____________

_s/ William B. Hoffman_________

JUDGES

SGF/sg 301 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : J.C., AM.C., AS.C. : JUDGMENT ENTRY : DEPENDENT CHILDREN : : CASE NO. 11CAF080072

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

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

affirmed. Costs to appellant.