Richland Cty. Children Servs. Bd. v. Adam

2012 Ohio 2596

• Court: Ohio Court of Appeals
• Decided: June 7, 2012
• Docket: 2011CA0071
• Status: Published

Opinion

[Cite as Richland Cty. Children Servs. Bd. v. Adam, 2012-Ohio-2596.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: RICHLAND COUNTY CHILDREN : Patricia A. Delaney, P.J. SERVICES BOARD : Sheila G. Farmer, J. : Julie A. Edwards, J. Plaintiff-Appellee : : Case No. 2011CA0071 -vs- : : : OPINION SPENCER A. ADAM

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas, Juvenile Division, Case No. 2010DEP00230

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 7, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

J. PETER STEFANUIK SPENCER A. ADAM, Pro Se Richland County Children Services 1175 Harwood Drive, Apt. H 731 School Road Mansfield, Ohio 44906 Mansfield, Ohio 44907

For Stephanie Green Guardian Ad Litem

DALE MUSILLI SHERYL GROFF 105 Sturges Avenue 13 Park Avenue West, Suite 602 Mansfield, Ohio 44903 Mansfield, Ohio 44902 [Cite as Richland Cty. Children Servs. Bd. v. Adam, 2012-Ohio-2596.]

Edwards, J.

{¶1} Defendant-appellant, Spencer Adam, appeals from the Richland County

Juvenile Court’s denial of his motion to terminate shared parenting and his motion to

voluntarily relinquish parental rights.

STATEMENT OF THE FACTS AND CASE

{¶2} M.A. (DOB 10/13/97) is the son of appellant Spencer Adam and Stephanie

Green. On November 3, 2010, appellee Richland County Children Services (“RCCS”)

filed a complaint in the Richland County Court of Common Pleas, Juvenile Division,

asking the court to find M.A. to be a dependent child and to grant protective supervision

to RCCS. A pretrial conference before a Magistrate was held on January 12, 2011. After

the parties were unable to reach an agreement concerning the complaint in this case,

the Magistrate, pursuant to an order filed on January 21, 2011, ordered that the case be

continued for trial.

{¶3} The trial court, as memorialized in a Judgment Entry filed on February 2,

2011, ordered that the trial be set for January 27, 2011. The trial court, in its Judgment

Entry, noted that both appellant and Green had entered denials to the allegations

contained in the complaint.

{¶4} An adjudicatory hearing before a Magistrate was held on January 27,

2011. Prior to the commencement of the hearing, Green admitted that M.A. was a

dependent child. The Magistrate, as memorialized in a Decision filed on February 2,

2011, found that M.A. was a dependent child with respect to both parents. The parties

agreed that the matter would proceed directly to disposition. The Magistrate, in his Richland County App. Case No. 2011CA0071 3

Decision, recommended that M.A. remain in the custody and care of his mother subject

to protective supervision by RCCS.

{¶5} On February 9, 2011, appellant filed a Motion to Terminate Parental

Rights pursuant to R.C. 2151.414(E)(16). On February 11, 2011, appellant filed

objections to the Magistrate’s decision that M.A. was a dependent child as it relates to

appellant. The objections were overruled via a Judgment Entry filed on March 3, 2011.

{¶6} Subsequently, the Magistrate, in an Order filed on April 6, 2011,

recommended that appellant’s Motion to Terminate Parental Rights be denied. The

Magistrate stated that courts did not terminate the rights on one parent independent of

the other and also that appellant’s motion was premature because “the Protective

Supervision Order was just granted by Magistrate’s Decision filed February 2, 2011

(further approved and adopted by Judgment Entry filed March 3, 2011).”

{¶7} At a case plan review on April 28, 2011, appellant requested to be

removed from the case plan and was removed from the same.

{¶8} On May 31, 2011, appellant filed another Motion to Terminate Parental

Rights. Appellant, in his motion, asked that his parental rights be terminated at or before

the annual case plan review and indicated that he “had repudiated his rights and

responsibilities as a father.” The Magistrate, in a Magistrate’s Decision filed on June 9,

2011, again recommended that such motion be overruled because the trial court would

not terminate the rights of one parent independent of the other and because the motion

lacked merit. In response, appellant, on June 15, 2011, filed a “Motion to Object Motion

to Terminate Shared Parenting Plan Motion to Change Name.” Appellant, in his motion,

asked, in part, that the child’s surname be changed to Green. Appellant also asked that Richland County App. Case No. 2011CA0071 4

“[i]n the alternative, or in addition to the motion to terminate parental rights and the

objection to the Court’s opinion on that motion”, the trial court “terminate shared

parenting rights under ORC 3109.”

{¶9} Pursuant to a Judgment Entry filed on June 30, 2011, the trial court

overruled appellant’s objection to the Magistrate’s June 9, 2011 Decision and approved

and adopted the same. The trial court stated that a parent did not have a right, as a

matter of law, to “unilaterally abandon one’s parental duties.” The trial court, in its

Judgment Entry, further overruled appellant‘s request to terminate the shared parenting

plan and to change the child’s surname.

{¶10} On July 7, 2011, appellant filed a Motion to Object. Appellant, in such

motion, objected to the denial of his motion for name change, his motion to terminate

shared parenting and his motion for termination of parental rights. The trial court, as

memorialized in a Judgment Entry filed on July 11, 2011, overruled appellant‘s Motion

to Object. The trial court, in its Judgment Entry, stated, in relevant part, as follows:

{¶11} “WHEREAS on June 30, 2011 the Court entered judgment overruling

various motions filed by Spencer Adam, biological father of the above-named child; and

{¶12} “WHEREAS included in said judgment was a record notation to the fact

that Mr. Adam, who previously declined legal representation at public expense in this

case, continues to file meritless, irrelevant, and/or superfluous motions/requests with

the Court, such that the Court therein put Mr. Adam on notice that such filings should

not continue; and

{¶13} “WHEREAS, notwithstanding said order to cease filing superfluous

motions with the Court, Mr. Adam nevertheless proceeded to file on July 7, 2011 a Richland County App. Case No. 2011CA0071 5

‘Motion to Object,’ which the Court finds is meritless, irrelevant, and/or superfluous on

its face.”

{¶14} Appellant now raises the following assignments of error on appeal:

{¶15} “I. “THE COURT’S DISMISSAL, AND/OR JUDGMENT, OF THE

APPELLANT’S MOTION TO TERMINATE SHARE PARENTING RIGHTS AS IT

RELATES TO THE FATHER, HOLDING THAT IT WAS A FRIVOLOUS MOTION AND

WAS WITHOUT MERIT, INSTEAD OF DECIDING THE MOTION BASED ON THE

BEST INTEREST’S ANALYSIS ENACTED UNDER R.C. 2151 AND R.C. 3109.

{¶16} “II. THE JUDGMENT OF THE COURT THAT THE VOLUNTARILY

RELINQUISHMENT OF PARENTAL RIGHTS, WITH THE STIPULATION THAT

FATHER MAINTAIN HIS CURRENT FINANCIAL OBLIGATION TO PAY CHILD

SUPPORT, CANNOT BE GRANTED INDEPENDENT OF THE TERMINATION OF THE

PARENTAL RIGHTS OF THE OTHER PARENT, AND IS NOT A RIGHT AS A MATTER

OF LAW, IS AN ERRONEOUS INTERPRETATION TO THE EXTENT THAT ITS

OPINION HOLDS THAT THE TERMINATION OF PARENTAL RIGHTS CANNOT BE

UNILATERAL. FURTHER, TO THE EXTENT THAT THE OPINION HOLDS THAT IT’S

NOT A RIGHT AS A MATTER OF LAW, IT DEFEATS THE INTENT OF LEGISLATION

BECAUSE THE COURT SHOULD HAVE DECIDED THIS MOTION UNDER A BEST

INTEREST’S ANALYSIS INSTEAD OF MERELY HOLDING THAT IT WAS NOT A

RIGHT AS A MATTER OF LAW.

{¶17} “III. THE IMPLICATION IN THE TRIAL COURT’S DECISION THAT THE

FATHER’S DECISION TO FOREGO LEGAL REPRESENTATION DURING TRIAL

MATERIALLY AFFECTED THE OUTCOME OF THE CASE IS IRRELEVANT TO THE Richland County App. Case No. 2011CA0071 6

MOTION TO TERMINATE SHARED PARENTING AND VOLUNTARILY

RELINQUISHING PARENTAL RIGHTS, AND IS AN ATTEMPT BY THE COURT TO

SHIFT THE FOCUS OF THIS APPEAL FROM THE ACTUAL ISSUES, AND SHOULD

BE DISREGARDED DURING THIS APPEAL.

{¶18} “IV. THE TRIAL COURT’S HOLDING THAT IT HAD PREVIOUSLY

CAUTIONED THE FATHER ABOUT FRIVOLOUS MOTIONS, TO THE BEST

KNOWLEDGE OF THE APPELLANT, IS NOT A TRUE STATEMENT IN THAT A

NOTICE WAS NEVER SERVED UP THE APPELLANT, AND IS ALSO NOT TRUE IN

THAT THE APPELLANT HAS YET TO FILE A FRIVOLOUS MOTION TO THE TRIAL

COURT; OR AT LEAST REASONABLE MINDS COULD DIFFER AS TO WHETHER

THESE MOTIONS WERE TRULY FRIVOLOUS AND WITHOUT MERIT.”

I, III

{¶19} Appellant, in his first and third assignments of error, challenges the trial

court’s denial of his motion to terminate shared parenting rights as it relates to

appellant.

{¶20} As noted by appellant in his filings in the trial court1, the shared parenting

plan was issued by the Richland County Domestic Relations Court, which is a separate

division of the Court of Common Pleas, rather than the Juvenile Court. See R.C.

2301.03. We find that the trial court did not err in overruling appellant’s motion to

terminate the shared parenting plan because the underlying order granting shared

parenting rights was issued by the Domestic Relations Division. As noted by appellee,

the Richland County Juvenile Court had no jurisdiction to grant such order.

{¶21} Appellant’s first assignment of error is, therefore, overruled. 1 See, for example, appellant’s February 9, 2011 Motion to Terminate Parental Rights. Richland County App. Case No. 2011CA0071 7

II, III

{¶22} Appellant, in his second and third assignments of error, argues that the

trial court erred in denying his motion to voluntarily relinquish parental rights.

{¶23} As a preliminary matter, we must first determine whether the order under

review is a final appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event that the

parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.

See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989);

Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d

922, (1972).

{¶24} An appellate court has jurisdiction to review and affirm, modify, or reverse

judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article

IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M

Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final

and appealable, then we have no jurisdiction to review the matter and must dismiss it.

See Gen. Acc. Ins. Co., supra at 20.

{¶25} For an order to be final and appealable, it must meet the requirements of

R.C. 2505.02(B). R.C. 2505.02(B) provides:

{¶26} “An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:

{¶27} “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment; Richland County App. Case No. 2011CA0071 8

{¶28} “(2) An order that affects a substantial right made in a special proceeding

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

{¶29} In In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, a

trial court denied a children-services agency's motion to modify an order granting it

temporary custody to an order of permanent custody. The agency then appealed and

the appellate court dismissed the agency's appeal of the denial for lack of a final,

appealable order. The Ohio Supreme court affirmed. The Ohio Supreme Court held

that a children services agency did not have a substantial right in the permanent

custody of children based on the fact that the agency had temporary custody of

children. The Ohio Supreme Court further held, in relevant part, as follows: “A trial court

order denying the motion of a children-services agency to modify temporary custody to

permanent custody and continuing temporary custody is not a final, appealable order

under R.C. 2505.02(B)(1) or (2).” Id. at ¶35. The court in such case noted that “the

continuation of the agency's temporary custody does not determine the outcome of the

action for neglect and dependency. Instead, all parties remain subject to further court

order during the temporary-custody phase. A juvenile court has several ultimate

dispositional options pursuant to R.C. 2151.415(A), and ordering the continuation of

temporary custody does not preclude the juvenile court from exercising any of these

options.” Id

{¶30} We find, similarly, that the denial of the motion to terminate parental rights

was not a final, appealable order. There is no substantial right involved in this case.

Pursuant to R.C. 2505.02 (A)(1), substantial right means a right that the United States

Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure Richland County App. Case No. 2011CA0071 9

entitles a person to enforce or protect. There is no substantial right to terminate one’s

parental rights and obligations. R.C. 2151.413 contemplates that only a public or

private children services agency, not a private party, can file a motion for permanent

custody. See also In the Matter of: P.T., 5th District No. 2011CA00200, 2012-Ohio-1287

at Fn. 1. Moreover, as noted by appellee, the trial court in this case “clearly

contemplated continued proceedings in the underlying dependency action…” It is

possible that appellant’s parental rights may be terminated further on in this case.

Because the order denying the motion to terminate parental rights is not a final,

appealable order, this Court lacks jurisdiction to review the same until the final

disposition of this case.2

{¶31} Furthermore, assuming, arguendo, that the order appealed from was a

final, appealable order, we find that appellant did not timely appeal from the same. The

original order was issued by the trial court on June 30, 2011. Appellant, on July 7,

2011, filed an objection to such decision. The same was denied on July 11, 2011.

Appellant’s Notice of Appeal was then filed on August 10, 2011.

{¶32} Appellant had no right to file objections to the trial court’s June 30, 2011,

order if it were a final, appealable order. Appellant would have had to file his notice of

appeal within thirty days of the June 30, 2011, order. His Notice of Appeal, therefore,

was filed beyond the requirement of App.R. 4 for the timely filing of an appeal of the trial

court’s June 30, 2011, order.

2 th See In Re A.P., 196 Ohio App.3d 500, 2011-Ohio-5998, 964 N.E.2d 56, 9 (Dist.), in which the Court held that the denial of a maternal grandmother’s motion for legal custody or expanded visitation was not a final, appealable order because it did not decide the case and was not a final, dispositional order. Richland County App. Case No. 2011CA0071 10

IV

{¶33} Appellant, in his fourth assignment of error, argues that the trial court

erred when, in its July 11, 2011, Judgment Entry, it referred to appellant’s motion to

terminate shared parenting plan and motion to terminate parental rights as frivolous.

{¶34} Based on our disposition of appellant’s first through third assignments of

error, appellant’s fourth assignment of error is moot.

{¶35} Appellant’s fourth assignment of error is, therefore, overruled.

{¶36} Accordingly, the appeal is dismissed.

By: Edwards, J.

Delaney, P.J. and

Farmer, J. concur

______________________________

JUDGES

JAE/d0125 [Cite as Richland Cty. Children Servs. Bd. v. Adam, 2012-Ohio-2596.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

RICHLAND COUNTY CHILDREN : SERVICES BOARD : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : SPENCER A. ADAM : : Defendant-Appellant : CASE NO. 2011CA0071

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

appeal is dismissed. Costs assessed to appellant.

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