[Cite as In re T.J.B., 2014-Ohio-2028.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: T.J.B. : APPEAL NO. C-130725 TRIAL NO. F13-444 :
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 14, 2014
Katz, Greenberger, & Norton, Scott Kravetz and Christina Yager for Appellant birth mother,
Voorhees & Levy LLC and Michael R. Voorhees for Appellee Private Adoption Services, Inc.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Appellant birth mother appeals the judgment of the Hamilton County
Juvenile Court dismissing her petition to revoke her permanent surrender of her minor
son T.J.B. to appellee Private Adoption Services (“PAS”), a private child-placing agency.
Because we conclude that the juvenile court lacked subject-matter jurisdiction to
entertain mother’s petition, we affirm its judgment.
Mother’s Permanent Surrender
{¶2} Mother gave birth to T.J.B., also known as T.J.R., on June 8, 2012.
On June 11, 2012, she executed a permanent surrender of the child for the sole purpose
of obtaining the adoption of the child. Mother’s execution of the permanent surrender
terminated her parental rights and resulted in PAS receiving permanent custody of
T.J.B. On June 12, 2012, PAS sent notice and copies of mother’s permanent surrender
to the Hamilton County Juvenile Court, which were journalized on June 18, 2012.
{¶3} On June 14, 2012, PAS placed T.J.B. with prospective adoptive
parents in California, following approval through the Interstate Compact for the
Placement of Children. In September 2012, the prospective adoptive parents filed a
petition to adopt T.J.B. in a California court. In February 2013, mother filed the current
petition seeking to have the Hamilton County Juvenile Court revoke her consent to the
adoption and void her permanent surrender of T.J.B. to PAS.
{¶4} PAS opposed the petition, arguing the juvenile court lacked
subject-matter jurisdiction over mother’s petition. A magistrate determined that
because mother had signed the permanent surrender in Ohio and it had been
processed through the Ohio judicial system to terminate her parental rights, the
juvenile court had jurisdiction over mother’s petition challenging her surrender. PAS
filed a timely objection, which the juvenile court sustained. It rejected the
2 OHIO FIRST DISTRICT COURT OF APPEALS
magistrate’s decision and dismissed mother’s petition for lack of subject-matter
jurisdiction.
Standard of Review
{¶5} In a single assignment of error, mother argues the juvenile court
erred in dismissing her petition for lack of subject-matter jurisdiction.
{¶6} Subject-matter jurisdiction denotes the power of a court to hear
and decide a case upon its merits and to render an enforceable judgment in the
action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph
one of the syllabus. The lack of subject-matter jurisdiction is not waivable, and
therefore, may be raised at any time. See Rosen v. Celebrezee, 117 Ohio St.3d 241,
2008-Ohio-853, 883 N.E.2d 420, ¶ 45, quoting Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.
{¶7} When ruling on a motion to dismiss for lack of subject-matter
jurisdiction, the trial court is not confined to the allegations in the complaint, but
may consider material pertinent to such inquiry without converting the motion into
one for summary judgment. See Wilkerson v. Howell Contrs., Inc., 163 Ohio App.3d
38, 2005-Ohio-4418, 836 N.E.2d 29, ¶ 9 (1st Dist.), citing State ex rel. Bush v.
Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). A trial court’s dismissal for
lack of subject-matter jurisdiction is a question of law that appellate courts review de
novo. See Dikong v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st
Dist.).
Juvenile Court Lacked Subject-Matter Jurisdiction
{¶8} “The juvenile court possesses only the jurisdiction that the General
Assembly has expressly conferred upon it.” See In re Gibson, 61 Ohio St.3d 168, 172-
173, 573 N.E.2d 1074 (1991), citing Ohio Constitution, Article IV, Section 4(B). The
3 OHIO FIRST DISTRICT COURT OF APPEALS
subject-matter jurisdiction of the juvenile court is created and defined in R.C.
2151.23. See id; see also Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, 978
N.E.2d 146, ¶ 13. Mother argues that the juvenile court has jurisdiction to entertain
her petition based upon R.C. 2151.23(A)(2), which provides that the juvenile court
has exclusive original jurisdiction “[t]o determine the custody of any child not a ward
of another court of this state.”
{¶9} Mother’s argument, however, ignores R.C. 2151.23(A)(9), which
specifically applies to permanent-custody agreements under R.C. 5103.15. R.C.
2151.23(A)(9) provides that “the juvenile court has exclusive original jurisdiction
under the Revised Code * * * [t]o hear and determine requests for the extension of
temporary custody agreements, and requests for approval of permanent custody
agreements, that are filed pursuant to section 5103.15 of the Revised Code.”
(Emphasis added.)
{¶10} R.C. 5103.15(B)(1) provides that “the parents * * * of a child, may
with court approval, surrender the child into the permanent custody of a public
children services agency or private child-placing agency to be cared for by the agency
or placed by it in a family home.” R.C. 5103.15(B)(2), provides, however, that
the parents of a child less than six months of age may enter into an
agreement with a private child placing agency surrendering the
child into the permanent custody of the agency without juvenile
court approval if the agreement is executed solely for the purpose
of obtaining the adoption of the child. The agency shall, not later
than two business days after entering into the agreement, notify
the juvenile court. The court shall journalize the notices it receives
under division (B)(2) of this section.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Here, mother elected to surrender her three-day-old son to the
permanent custody of PAS, a private child-placing agency, solely for the purpose of
obtaining the adoption of the child. Thus, under R.C. 5103.15(B)(2), juvenile court
approval was not required to effect the permanent surrender of her son. Given the
language in R.C. 2151.23(A)(9), which only references the jurisdiction of the juvenile
court in conjunction with “requests for approval of permanent custody agreements,
that are filed pursuant to section 5103.15 of the Revised Code,” we cannot say that
the juvenile court erred in concluding that it lacked jurisdiction to entertain mother’s
petition, which sought to “revoke” the permanent surrender of her child.
{¶12} The Ninth Appellate District has reached the same conclusion in a
factually similar case.
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[Cite as In re T.J.B., 2014-Ohio-2028.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: T.J.B. : APPEAL NO. C-130725 TRIAL NO. F13-444 :
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 14, 2014
Katz, Greenberger, & Norton, Scott Kravetz and Christina Yager for Appellant birth mother,
Voorhees & Levy LLC and Michael R. Voorhees for Appellee Private Adoption Services, Inc.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Appellant birth mother appeals the judgment of the Hamilton County
Juvenile Court dismissing her petition to revoke her permanent surrender of her minor
son T.J.B. to appellee Private Adoption Services (“PAS”), a private child-placing agency.
Because we conclude that the juvenile court lacked subject-matter jurisdiction to
entertain mother’s petition, we affirm its judgment.
Mother’s Permanent Surrender
{¶2} Mother gave birth to T.J.B., also known as T.J.R., on June 8, 2012.
On June 11, 2012, she executed a permanent surrender of the child for the sole purpose
of obtaining the adoption of the child. Mother’s execution of the permanent surrender
terminated her parental rights and resulted in PAS receiving permanent custody of
T.J.B. On June 12, 2012, PAS sent notice and copies of mother’s permanent surrender
to the Hamilton County Juvenile Court, which were journalized on June 18, 2012.
{¶3} On June 14, 2012, PAS placed T.J.B. with prospective adoptive
parents in California, following approval through the Interstate Compact for the
Placement of Children. In September 2012, the prospective adoptive parents filed a
petition to adopt T.J.B. in a California court. In February 2013, mother filed the current
petition seeking to have the Hamilton County Juvenile Court revoke her consent to the
adoption and void her permanent surrender of T.J.B. to PAS.
{¶4} PAS opposed the petition, arguing the juvenile court lacked
subject-matter jurisdiction over mother’s petition. A magistrate determined that
because mother had signed the permanent surrender in Ohio and it had been
processed through the Ohio judicial system to terminate her parental rights, the
juvenile court had jurisdiction over mother’s petition challenging her surrender. PAS
filed a timely objection, which the juvenile court sustained. It rejected the
2 OHIO FIRST DISTRICT COURT OF APPEALS
magistrate’s decision and dismissed mother’s petition for lack of subject-matter
jurisdiction.
Standard of Review
{¶5} In a single assignment of error, mother argues the juvenile court
erred in dismissing her petition for lack of subject-matter jurisdiction.
{¶6} Subject-matter jurisdiction denotes the power of a court to hear
and decide a case upon its merits and to render an enforceable judgment in the
action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph
one of the syllabus. The lack of subject-matter jurisdiction is not waivable, and
therefore, may be raised at any time. See Rosen v. Celebrezee, 117 Ohio St.3d 241,
2008-Ohio-853, 883 N.E.2d 420, ¶ 45, quoting Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.
{¶7} When ruling on a motion to dismiss for lack of subject-matter
jurisdiction, the trial court is not confined to the allegations in the complaint, but
may consider material pertinent to such inquiry without converting the motion into
one for summary judgment. See Wilkerson v. Howell Contrs., Inc., 163 Ohio App.3d
38, 2005-Ohio-4418, 836 N.E.2d 29, ¶ 9 (1st Dist.), citing State ex rel. Bush v.
Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). A trial court’s dismissal for
lack of subject-matter jurisdiction is a question of law that appellate courts review de
novo. See Dikong v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st
Dist.).
Juvenile Court Lacked Subject-Matter Jurisdiction
{¶8} “The juvenile court possesses only the jurisdiction that the General
Assembly has expressly conferred upon it.” See In re Gibson, 61 Ohio St.3d 168, 172-
173, 573 N.E.2d 1074 (1991), citing Ohio Constitution, Article IV, Section 4(B). The
3 OHIO FIRST DISTRICT COURT OF APPEALS
subject-matter jurisdiction of the juvenile court is created and defined in R.C.
2151.23. See id; see also Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, 978
N.E.2d 146, ¶ 13. Mother argues that the juvenile court has jurisdiction to entertain
her petition based upon R.C. 2151.23(A)(2), which provides that the juvenile court
has exclusive original jurisdiction “[t]o determine the custody of any child not a ward
of another court of this state.”
{¶9} Mother’s argument, however, ignores R.C. 2151.23(A)(9), which
specifically applies to permanent-custody agreements under R.C. 5103.15. R.C.
2151.23(A)(9) provides that “the juvenile court has exclusive original jurisdiction
under the Revised Code * * * [t]o hear and determine requests for the extension of
temporary custody agreements, and requests for approval of permanent custody
agreements, that are filed pursuant to section 5103.15 of the Revised Code.”
(Emphasis added.)
{¶10} R.C. 5103.15(B)(1) provides that “the parents * * * of a child, may
with court approval, surrender the child into the permanent custody of a public
children services agency or private child-placing agency to be cared for by the agency
or placed by it in a family home.” R.C. 5103.15(B)(2), provides, however, that
the parents of a child less than six months of age may enter into an
agreement with a private child placing agency surrendering the
child into the permanent custody of the agency without juvenile
court approval if the agreement is executed solely for the purpose
of obtaining the adoption of the child. The agency shall, not later
than two business days after entering into the agreement, notify
the juvenile court. The court shall journalize the notices it receives
under division (B)(2) of this section.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Here, mother elected to surrender her three-day-old son to the
permanent custody of PAS, a private child-placing agency, solely for the purpose of
obtaining the adoption of the child. Thus, under R.C. 5103.15(B)(2), juvenile court
approval was not required to effect the permanent surrender of her son. Given the
language in R.C. 2151.23(A)(9), which only references the jurisdiction of the juvenile
court in conjunction with “requests for approval of permanent custody agreements,
that are filed pursuant to section 5103.15 of the Revised Code,” we cannot say that
the juvenile court erred in concluding that it lacked jurisdiction to entertain mother’s
petition, which sought to “revoke” the permanent surrender of her child.
{¶12} The Ninth Appellate District has reached the same conclusion in a
factually similar case. In In re E.B., 9th Dist. Summit No. 23850, 2008-Ohio-784,
the birth mother had filed in the Summit County Juvenile Court a motion for relief
from judgment to set aside her permanent surrender. Id. at ¶ 3. An adoption petition
had already been filed and was pending in the probate court when the birth mother
filed her motion in the juvenile court. Id. at ¶ 6. The Summit County Juvenile Court
dismissed the birth mother’s motion for lack of jurisdiction and the Ninth Appellate
District affirmed. Id. at ¶ 7-8.
{¶13} The Ninth District held that because the birth mother had elected
to surrender her five-month-old child to a private child-placing agency solely for the
purpose of obtaining the adoption of the child, the juvenile court had no obligation
under the plain language of R.C. 5103.15(B)(2) to take any action in regard to the
surrender agreement. Id. at ¶ 19. Thus, the Ninth Appellate District concluded that
R.C. 5103.15(B)(2) when strictly construed did not recognize the right of withdrawal
of consent by a parent of a child less than six months old where permanent surrender
had been made to a private agency solely for the purpose of adoption. Id. at ¶ 20.
5 OHIO FIRST DISTRICT COURT OF APPEALS
Because juvenile court approval was not required, there was no jurisdiction for the
court to exercise. Id. at ¶ 21-22.
{¶14} Similarly, here the juvenile court’s administrative function of
journalizing the permanent surrender under R.C. 5103.15(B)(2) did not invoke its
jurisdiction to approve or disapprove the grant of permanent custody to PAS. Thus,
any arguments mother may have relating to the validity of her permanent surrender,
which would have consequences for any subsequent adoption proceeding, would not
lie within the juvenile court’s jurisdiction.
{¶15} Given that mother has challenged on appeal only the subject-
matter jurisdiction of the juvenile court to entertain her petition, and PAS has not
cross-appealed from the juvenile court’s statement that jurisdiction over her petition
lies with the Hamilton County Probate Court, we decline mother’s and PAS’s
invitation to determine whether the probate court would have jurisdiction to
entertain mother’s petition or whether jurisdiction resides with the California court
that is presiding over the adoption proceedings. We, therefore, overrule mother’s
sole assignment of error and affirm the judgment of the juvenile court. Judgment affirmed.
CUNNINGHAM, P.J, and HILDEBRANDT, J., concur.
Please note: The court has recorded its own entry this date.