M.K. v. R.K.

2023 Ohio 3475

• Court: Ohio Court of Appeals
• Decided: September 28, 2023
• Docket: 112291
• Status: Published

Opinion

[Cite as M.K. v. R.K., 2023-Ohio-3475.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

M.K., :

Plaintiff-Appellee, : No. 112291 v.

R.K., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: September 28, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-21-384196

Appearances:

Schneider Smeltz Spieth Bell LLP, Ryan P. Nowlin, Mark M. Mikhaiel, and Jenna R. Bird, for appellant.

Baron Family Law LLC, Alexis M. Gacey, and Brittany A. Baron, for appellee. MICHAEL JOHN RYAN, J.:

Defendant-appellant, R.K., mother of B.K. (“Mother”), appeals from

the domestic relations court’s January 5, 2023 judgment certifying all issues

pertaining to the allocation of parental rights and responsibilities of B.K., the minor

child at issue in this appeal, to the Cuyahoga County Juvenile Court. After a

thorough review of the facts and pertinent law, we reverse and remand.

Procedural History

Plaintiff-appellee, M.K., father of B.K. (“Father”), initiated this

divorce proceeding against Mother in 2021. In addition to B.K., the parties have

another minor child who is not at issue in this appeal. The record demonstrates that

B.K. and Father had a contentious relationship and there were allegations that

Mother alienated the child from Father. A guardian ad litem (“GAL”) was appointed

for the children. The GAL filed his formal report in December 2022, ahead of the

scheduled January 2023 trial.

The trial began in early January 2023, and started with consideration

of a pending motion requesting that Mother be “blacked out” from having contact

with B.K. for a 90-day period. Father called Mother as if on cross-examination. The

following day, having only heard Mother’s testimony, the trial court issued the

judgment that is the subject of this appeal. The judgment, which states that it was

based on the trial court’s review of the GAL’s report, reads in pertinent part as

follows: Upon the Court’s own motion, pursuant to Ohio Revised Code Section 3109.04(D)(2), to certify the record in this case to the Cuyahoga County Juvenile Court, this Court makes the following findings[:]

1) The minor child, B.K.[,] * * * is subject to this Court’s jurisdiction[;]

2) Due to B.K.’s homicidal ideations towards his father, and mother[’]s persistent parental alienation of B.K. from his father, both parents are unsuitable to have the parental rights for the care of the minor child and are unsuitable to provide the place of residence; and

3) Both parents are unsuitable to be designated Residential Parent and Legal Custodian of the minor child B.K.

Trial court’s judgment entry (Jan. 5, 2023).

January 5, 2023 Judgment is a Final, Appealable Order

Mother has filed this interlocutory appeal from the January 5, 2023

judgment. Father has filed a motion to dismiss, in which he contends that the

judgment is not a final, appealable order. For the reasons set forth below, we find

that the judgment is a final, appealable order.

This court has jurisdiction over “final orders” of lower courts. Ohio

Constitution, Article IV, Section 3(B)(2). An appellate court can only review final,

appealable orders. What constitutes a “final, appealable order,” as applicable here,

is statutorily defined as “[a]n order that affects a substantial right made in a special

proceeding or upon a summary application in an action after judgment [.]”

R.C. 2505.02(B).

A “special proceeding” is “an action or proceeding that is specially

created by statute and that prior to 1853 was not denoted as an action at law or a suit

in equity.” R.C. 2505.02(A)(2). Divorce actions are “special proceedings” within the meaning of R.C. 2505.02. Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-

Ohio-2317, 950 N.E.2d 516, ¶ 6, citing State ex rel. Papp v. James, 69 Ohio St.3d

373, 379, 632 N.E.2d 889 (1994).

A “substantial right” is “a right that the United States Constitution,

the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a

person to enforce or protect.” R.C. 2505.02(A)(1). A “substantial right” is essentially

a legal right that is enforced and protected by law. State v. Coffman, 91 Ohio St.3d

125, 127, 742 N.E.2d 644 (2001). Decisions involving the care and custody of a child

implicate substantial rights of the biological parents. State ex rel. V.K.B. v. Smith,

138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 16.

The case law is lacking on the particular final, appealable order issue

presented in this case. The specific issue being whether a domestic relations court’s

order of certification to a juvenile court the allocation of parental rights and

responsibilities of a child subject to a pending divorce proceeding (i.e., an order not

made pursuant to, or in tandem with, a final divorce decree) is a final, appealable

order.1 For the reasons discussed below, we find that it is.

Although the trial court’s judgment here did not explicitly grant

custody of the child to the Cuyahoga County Division of Children and Family

Services (“CCDCFS”), the practical effect of the trial court’s judgment was to divest

the parents of at least the care of B.K., if not the custody of the child as well. The

1 A final, appealable order exists as to a certification order when it occurs at the conclusion of a divorce proceeding. See Robinson v. Robinson, 19 Ohio App.3d 323, 484 N.E.2d 710 (10th Dist.1984). court found B.K.’s parents “unsuitable to have the parental rights for the care of the

minor child and * * * unsuitable to provide the place of residence.”

Further, under the statute invoked by the trial court for the

certification, R.C. 3109.04(D)(2), “upon the certification, the juvenile court has

exclusive jurisdiction.” Thus, Mother would not have the ability at the end of the

divorce proceeding to appeal the certification issue, because the domestic relations

court’s jurisdiction over issues relative to the issues regarding the allocation of

parental rights and responsibilities of B.K. would have long been nonexistent.

In re C.L.M., 8th Dist. Cuyahoga No. 99622, 2013-Ohio-4044, is also

instructive. In In re C.L.M., a juvenile was adjudicated delinquent and committed

to a youth facility for a minimum period of one year and a maximum period until his

21st birthday. After serving the minimum period of time, the juvenile was granted

supervised release and placed on the trial court’s re-entry docket. The juvenile was

placed in a group home and the department of youth services maintained legal

custody of him.

Shortly after the juvenile’s release, a complaint for a violation of the

terms of his supervised release was filed, and after a hearing it was determined that

he was in violation. The re-entry court found that the juvenile had not committed a

new offense whereby he could be committed to a youth services facility and therefore

the court issued an order granting emergency custody of the juvenile to the

Cuyahoga County Division of Children and Family Services (“CCDCFS”). CCDCFS

appealed. This court found that the trial court’s order was a final, appealable

order.

[W]e conclude that a substantial right is affected in this case. Because the emergency custody order affects a substantial right made in a special proceeding, the order is final and appealable under R.C. 2505.02(B)(2).

In re C.L.M., at ¶ 17.

This court reasoned that, “[i]n short, the order imposed custody on

CCDCFS where no custody previously existed, and required CCDCFS to fulfill a

multitude of statutory obligations.” Id. Similarly, here, the trial court’s order

imposed jurisdiction on the juvenile court where jurisdiction previously did not

exist.

In another instructive case, Covell v. Covell, 4th Dist. Pickaway

No. 17CA19, 2018-Ohio-3358, the Fourth District Court of Appeals held that a

judgment finding the parents of minor children unsuitable to parent and granting

temporary custody to a relative was a final, appealable order. The court reasoned

that “the trial court’s order met the requirements of R.C. 2505.02, by affecting a

substantial right in a special proceeding, and therefore constituted a final appealable

order.” Id. at ¶ 11, fn.3.

We recognize that it may be best practice to address all the issues in a

single divorce decree but, where, as in this case, the proceedings relate to the transfer

of parental rights and responsibilities to the juvenile court, the need for immediate

review outweighs the harm caused by piecemeal appeals. See Stackhouse v. Stackhouse, 2d Dist. Montgomery No. 15710, 1996 Ohio App. LEXIS 4853, 3 (Nov.

8, 1996).

Based on the discussion above, we find that the trial court’s January

5, 2023 judgment in this case affects a substantial right in a special proceeding and

is a final, appealable order.

Assignments of Error

I. The Trial Court erred when it certified all issues to the Juvenile Division pertaining to allocation of parental rights and responsibility of B.K. without making a finding that it is in the best interests of B.K.

II. The Trial Court erred when it held that both parents are unsuitable to have the parental rights and to provide the place of residence to B.K.

III. The trial court erred when it relied on the GAL’s Report in the Judgment Entry.

Law and Analysis

We begin our analysis by acknowledging that it is well recognized that

the right to raise a child is an “‘essential’ and ‘basic’ civil right.” In re Hayes, 79 Ohio

St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Murray, 52 Ohio St.3d 155, 556

N.E.2d 1169 (1990). Moreover, a parent’s right to custody of his or her child is

“‘paramount.’” In re Hayes at id., quoting In re Perales, 52 Ohio St.2d 89, 97, 369

N.E.2d 1047 (1977). Because a parent has a fundamental liberty interest in the

custody of his or her child, this important legal right is “protected by law and, thus,

comes within the purview of a substantial right.” In re Murray at 157. Therefore, parents “must be afforded every procedural and substantive protection the law

allows.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist. 1991).

Trial Court’s Findings Insufficient to Certify Case

Relevant to the instant case, R.C. 3109.04(D)(2) provides a domestic

relations court with the authority to certify a case to juvenile court. See Haynes v.

Haynes, 12th Dist. Warren No. CA2016-07-067, 2017-Ohio-2718, stating that “there

are a number of means by which a juvenile court may acquire jurisdiction over

parenting matters[,]” and thus, “[f]or R.C. 3109.04(D)(2) and 3109.06 to be given

full effect, they may only be interpreted as permitting distinct methods of

certification.” Id. at ¶ 13, ¶ 19.

R.C. 3109.04(D)(2), the provision on which the trial court’s judgment

was based, provides as follows:

If the court finds, with respect to any child under eighteen years of age, that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child, it may commit the child to a relative of the child or certify a copy of its findings, together with as much of the record and the further information, in narrative form or otherwise, that it considers necessary or as the juvenile court requests, to the juvenile court for further proceedings, and, upon the certification, the juvenile court has exclusive jurisdiction.

Thus, under the plain language of R.C. 3109.04(D)(2), “[i]t must be

in the best interests of the children to issue a finding that neither parent is suitable

to have parental rights or be the custodial parent.” See v. See, 8th Dist. Cuyahoga

No. 77850, 2000 Ohio App. LEXIS 4784, 5 (Oct. 12, 2000). In her first assignment

of error, Mother contends that the trial court erred in certifying all issues relative to the allocation of parental rights for B.K. to the juvenile court without making a

finding that it was in B.K.’s best interests.

In response, Father contends that the best-interest analysis only

comes into play after a finding of parental unsuitability and cites In re C.V.M., 8th

Dist. Cuyahoga No. 98340, 2012-Ohio-5514, and In re Perales, 52 Ohio St.2d 89,

369 N.E.2d 1047 (1977), in support of his contention. Father further contends that

Mother is “[q]uite frankly * * * parsing hairs by arguing that the January 5, 2023

Judgment Entry is erroneous for omitting specific reference to the term ‘best

interest.’”

Both In re C.V.M. and In re Perales deal with custody disputes that

arose from juvenile court proceedings, not domestic relations court, as is the case

here. In In re Perales, the mother-appellant contended that the best-interest test

provided in R.C. 3109.04 should have applied to her case in juvenile court. The

Supreme Court of Ohio noted the distinction between a custody dispute arising from

a juvenile court proceeding and one arising from a divorce proceeding, stating that

in a divorce proceeding “the welfare of the child would be the only consideration

before the court,” while in a juvenile court custody proceeding the “scope of inquiry

must, of necessity, be broader.” In re Perales at 96.

The domestic relations court invoked R.C. 3109.04(D)(2) as the basis

of the certification. That statute requires a best-interest determination, which the

trial court failed to make. In her second assignment of error, Mother contends that the trial

court failed to make any one finding required for parental unsuitability. In order to

find parental unsuitability, the court must determine, by a preponderance of the

evidence, that the parent abandoned the child, contractually relinquished custody

of the child, has become totally incapable of supporting or caring for the child, or

that an award of custody to the parent would be detrimental to the child. Masitto v.

Masitto, 22 Ohio St.3d 63, 65, 488 N.E.2d 857 (1986); In re Perales at 98.

The trial court’s judgment finds Mother and Father unsuitable, but

fails to state that its finding is made by a preponderance of the evidence based on

one of the above-mentioned findings. Thus, because the trial court failed to make

either a best-interest determination or a proper unsuitability finding, we find the

first and second assignments of error well taken.

Because the trial court here did not make the appropriate finding

under the statute it invoked — R.C. 3109.04(D)(2) — we reverse and remand.

Trial Court’s Reliance on GAL’s Report

For her third assignment of error, Mother contends that the trial

court erred in relying on the GAL’s report in its judgment because: (1) the report

was not admitted as an exhibit in contravention of Sup.R. 48.06(2), (2) the parties

were not afforded an opportunity to cross-examine the GAL, and (3) “[t]he entire

admissibility of the report is problematic, as virtually all of the medical findings are

privileged and inadmissible.” Initially, we note that the “rules of superintendence are merely

guidelines and do not have the force and effect of statutory law.” O’Malley v.

O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 56, citing In re D.C.J.,

2012-Ohio-4154, 976 N.E.2d 931, ¶ 48 (8th Dist.). “They are purely internal

housekeeping rules which are of concern to the judges of the several courts but

create no rights in individual defendants.” State v. Gettys, 49 Ohio App.2d 241, 243,

360 N.E.2d 735 (3d Dist.1976).

It is true that the report was not admitted into evidence. However,

the record demonstrates that counsel and the trial court were provided a copy of the

report on December 29, 2022, and thus, there was no violation of the parties’ due

process rights. Further, the trial court specifically stated that it was not attaching a

copy of the report to its judgment “to protect the rights of the parties and the minor

child from subsequent dissemination of privileged information received as a result

of medical releases,” which was appropriate. The report was filed under seal with

this court.

We do agree with Mother, however, that the trial court’s reliance on

the report without having had afforded the parties the opportunity to cross-examine

the GAL was an abuse of discretion. In In re Hoffman, 97 Ohio St.3d 92, 2002-

Ohio-5368, 776 N.E.2d 485, the Supreme Court of Ohio held that “[i]n a permanent

custody proceeding in which the guardian ad litem’s report will be a factor in the

trial court’s decision, parties to the proceeding have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody

recommendation.” Id. at syllabus.

At least one appellate district has held that Hoffman’s holding applies

in custody proceedings outside of the context of the termination of parental rights.

In Schill v. Schill, 11th Dist. Geauga No. 2002-G-2465, 2004-Ohio-5114, where a

child’s custody was at issue in a divorce proceeding, the Eleventh Appellate District

held that “the trial court’s consideration of the GAL’s findings, without providing the

parties opportunity to cross-examine the guardian, violated due process and was an

abuse of discretion.” Id. at ¶ 59; see also Allen v. Allen, 11th Dist. Trumbull

No. 2009-T-0070, 2010-Ohio-475, In re Gruber, 11th Dist. Trumbull No. 2007-T-

0001, 2007-Ohio-3188, and In re Seitz, 11th Dist. Trumbull No. 2002-T-0097,

2003-Ohio-5218.

Thus, Mother’s third assignment of error is well taken to the extent

that the trial court’s reliance on the GAL’s report without affording the parties an

opportunity to cross-examine the GAL was an abuse of discretion.

Judgment reversed; case remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure. MICHAEL JOHN RYAN, JUDGE

MARY J. BOYLE, J., CONCURS; EILEEN T. GALLAGHER, P.J., DISSENTS (WITH SEPARATE OPINION)

EILEEN T. GALLAGHER, P.J., DISSENTING:

Respectfully, I dissent from the majority’s determination that the trial

court’s January 5, 2023 judgment constitutes a final, appealable order. It is my

belief that because the trial court’s application of R.C. 3109.04(D)(2) was not

incorporated into a final divorce decree, the judgment did not satisfy the

requirements of R.C. 2505.02 on its own.

As stated by the majority, appellate courts have jurisdiction “to review

and affirm, modify, or reverse judgments or final orders.” Article IV, Section

3(B)(2), Ohio Constitution. R.C. 2505.02(B) sets forth several types of final,

appealable orders. The majority’s analysis involves the category defined in R.C.

2505.02(B)(2), which provides that an “order that affects a substantial right made

in a special proceeding” is a final, appealable order. The Ohio Supreme Court has

held that an order affects a substantial right for purposes of R.C. 2505.02(B)(2) only

if “in the absence of immediate review of the order [the appellant] will be denied

effective relief in the future.” Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616

N.E.2d 181 (1993).

Thus, to demonstrate that the trial court’s order transferring

jurisdiction to the juvenile court is a final, appealable order, Mother must show (1) that the order was made in a special proceeding, (2) that the order affects a

substantial right, and (3) that she would not be able to effectively protect her

substantial right without immediate review. Thomasson v. Thomasson, 153 Ohio

St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 11.

In this case, there is no dispute that the trial court’s judgment was

made in the midst of a divorce action and was thereby made in a “special proceeding”

as contemplated under R.C. 2505.02(A)(2). I further recognize the well-established

principle that decisions involving the care and custody of a child implicate

substantial rights of the biological parents. With that stated, however, the trial

court’s January 5, 2023 judgment did not, either expressly or inherently, constitute

an order for emergency or permanent custody to either parent. Nor did the trial

court’s judgment designate a nonparent as the child’s temporary custodian. The

judgment was limited to an application of R.C. 3109.04(D)(2) and the court’s

determination that it was necessary to transfer the matter to the juvenile court for

further proceedings relating to the best interests of B.K. Although the statute

required the court to consider the best interests of the child, the trial court did not

render a final judgment concerning the allocation of Mother and Father’s parental

rights and responsibilities.

In the absence of a final divorce decree, this appeal concerns a section

of R.C. 3109.04 that contemplates jurisdiction and does not determine the action or

otherwise constitute a final determination concerning the appropriate placement of

a child. In my view, the court’s judgment is more analogous to a transfer of venue or bindover proceedings, the judgments of which are merely procedural and do not

constitute final, appealable orders. See, e.g., Farshchian v. Glenridge Machine Co.,

8th Dist. Cuyahoga No. 91821, 2009-Ohio-1602, ¶ 10 (“[W]e find that the transfer

of jurisdiction in this case does not determine the action and prevent a judgment

because it is procedural; it does not decide any claim.”); In re D.H., 152 Ohio St.3d

310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 12-13 (a bindover proceeding in juvenile court

is a provisional remedy).

While the majority decision appears to take issue with the court’s

adoption of the GAL’s recommendation to restrict the parents’ access to the child

until certain conditions are fulfilled, that judgment is not before this court. The

resolution of the parties’ parental rights and responsibilities will be determined by

the juvenile court at a later date. Although the majority correctly states that Mother

and Father may not have the opportunity to effectively appeal the certification issue

at the end of the divorce proceedings, the parties will have the opportunity to

effectively protect their substantial rights as B.K.’s biological parents once a final,

appealable custody order is issued by the court of jurisdiction. Similarly, Mother

has not presented any caselaw to suggest that she would be prevented from

challenging the trial court’s application of R.C. 3109.04(D)(2) once the juvenile

court issues a final, appealable order. Based on the foregoing, I am therefore unpersuaded by the majority’s

conclusion that the trial court’s judgment affected a substantial right in a special

proceeding. Accordingly, I would dismiss this appeal for lack of a final, appealable