[Cite as O'Conner v. Stires, 2017-Ohio-8929.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           FAYETTE COUNTY




REGINA O'CONNER, et al.,                         :
                                                        CASE NO. CA2017-04-008
        Plaintiffs-Appellees,                    :
                                                               OPINION
                                                 :             12/11/2017
   - vs -
                                                 :

JASON STIRES,                                    :

        Defendant-Appellant.                     :



             APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                             Case No. AD20110034



Mark J. Pitstick, 224 North Fayette Street, Washington C.H., Ohio 43160, for plaintiff-
appellee

Melissa S. Upthegrove, 254 East Court Street, Washington C.H., Ohio 43160, for
defendant-appellant

Judkins & Hayes, John W. Judkins, 303 West Jefferson Street, P.O. Box 33, Greenfield,
Ohio 43160, for appellee, Teresa Chaffin

Jess C. Weade, Fayette County Courthouse, 110 East Court Street, Washington C.H., Ohio
43160, for appellee Fayette County Department of Job & Family Services

Kristina Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, Guardian Ad Litem



        M. POWELL, J.

        {¶ 1} Appellant, Jason Stires ("Father"), appeals a decision of the Fayette County
                                                                             Fayette CA2017-04-008

Court of Common Pleas, Juvenile Division, granting legal custody of his daughter, J.S., to

the child's maternal grandmother, Teresa Chaffin ("Grandmother").1

        {¶ 2} Regina O'Conner ("Mother") and Father are the unmarried parents of J.S.,

who was born in September 2010. The parties lived together from late 2009 to early 2013.

Following the parties' separation, J.S. remained with Mother.                 The parties' testimony

indicates that sometime in 2013, Father was granted standard parenting time with J.S. by

court order.

        {¶ 3} In July 2016, Mother was arrested and charged with several criminal offenses.

J.S. was released to Grandmother. Upon release from jail, Mother entered into a safety

plan with the Fayette County Department of Job & Family Services ("the Agency"). Under

the safety plan, J.S. was to stay with Grandmother and Mother was to have supervised

visitation.

        {¶ 4} On July 21, 2016, Father moved for emergency custody. That same day, the

juvenile court denied Father's motion for emergency custody, ostensibly construed Father's

motion as a motion for custody, and scheduled a hearing for August 4, 2016. By judgment

entry filed on August 5, 2016, the juvenile court granted temporary custody of J.S. to the

Agency, noting the lack of evidence presented at the hearing, Mother's unresolved pending

criminal charges, and the fact J.S. had been placed with Grandmother pursuant to the safety

plan.   Upon receiving temporary custody of J.S., the Agency placed the child with

Grandmother. The safety plan was terminated. Father's parenting time with J.S. was

increased.

        {¶ 5} Subsequently, Grandmother moved for custody of J.S. In turn, Father filed a

motion to modify parental rights and responsibilities, seeking custody. The juvenile court




1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar.
                                                   -2-
                                                                        Fayette CA2017-04-008

held a hearing on the motions on March 7, 2017. Mother, Father, Grandmother, the

guardian ad litem for J.S., a caseworker from the Agency, and two relatives testified at the

hearing. Mother testified that in exchange for her recent guilty plea to criminal charges, she

was going to be incarcerated for four years and nine months. Mother stated her desire that

legal custody of J.S. be granted to Grandmother. Both at the hearing and in a report filed

prior to the hearing, the guardian ad litem recommended that legal custody be granted to

Grandmother and that Father's current parenting time be continued. The caseworker stated

she had no concerns with either Father or Grandmother being granted legal custody.

Father's relative testified Father had the ability to parent J.S. full time.

       {¶ 6} On March 15, 2017, the juvenile court granted legal custody of J.S. to

Grandmother and standard parenting time to Father. Upon considering the factors set forth

in R.C. 3109.04(F)(1) and noting Mother's wish that Grandmother be granted legal custody,

the fact that Grandmother and Father live in close proximity to one another, and

Grandmother's shown adaptability in fostering visitation with both parents, the juvenile court

found it was in the best interest of J.S. to grant legal custody to Grandmother. Father

subsequently filed a motion for a new trial and relief from judgment which was denied by

the juvenile court.

       {¶ 7} Father now appeals, raising three assignments of error.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED WHEN IT AWARDED TEMPORARY CUSTODY

OF THE MINOR CHILD TO CHILDREN SERVICES.

       {¶ 10} Father argues the juvenile court did not have jurisdiction to grant temporary

custody of J.S. to the Agency in August 2016 because the parties were before the court on

Father's initial motion for custody, and not on a custody motion filed by the Agency.

       {¶ 11} Juv.R. 13(A) allows a juvenile court to "make such temporary orders

                                               -3-
                                                                    Fayette CA2017-04-008

concerning the custody or care of a child * * * as the child's interest and welfare requires."

Thus, a juvenile court has authority to grant temporary custody as it deems necessary in

light of the child's interest and welfare. See Renz v. Renz, 4th Dist. Athens No. 93 CA 1585,

1995 Ohio App. LEXIS 176 (Jan. 19, 1995); In re Rodriguez, 6th Dist. Ottawa No. OT-87-

18, 1988 Ohio App. LEXIS 511 (Feb. 19, 1988). The juvenile court's August 5, 2016

judgment entry ordering that J.S. be placed into the temporary custody of the Agency was

therefore pursuant to the court's authority under Juv.R. 13(A).

       {¶ 12} Even if we were to find the juvenile court erred in granting temporary custody

to the Agency, the error has no bearing on the ultimate outcome of the case because the

temporary custody order has been superseded by the juvenile court's March 15, 2017 final

custody determination granting legal custody to Grandmother and denying Father's motion

for custody. See Barry v. Rolfe, 8th Dist. Cuyahoga Nos. 88459, 88460, 88676, 88680 thru

88686, and 88908 thru 88911, 2008-Ohio-3131 (juvenile court's temporary custody order

was rendered moot by the court's final custody determination); Ryan v. Ryan, 5th Dist.

Tuscarawas No. 2007AP030024, 2007-Ohio-6568; and Kenney v. Kenney, 12th Dist.

Warren No. CA2001-04-036, 2001 Ohio App. LEXIS 5320 (Nov. 26, 2001) (when a trial

court enters a final custody decision, the temporary custody order is superseded).

       {¶ 13} Father's first assignment of error is overruled.

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE COURT ABUSED ITS DISCRETION WHEN IT AWARDED CUSTODY

TO A NONPARENT WITHOUT A FINDING OF UNSUITABILITY AND UTILIZING THE

BEST INTEREST STANDARD IN A CUSTODY DETERMINATION BETWEEN [A]

PARENT AND NON-PARENT VIOLATING APPELLEE'S CONSTITUTIONAL RIGHTS.

       {¶ 16} Father argues the juvenile court erred in granting legal custody of J.S. to

Grandmother, a nonparent, without first finding Father unsuitable.         In support of his

                                             -4-
                                                                       Fayette CA2017-04-008

argument, Father cites In re Perales, 52 Ohio St.2d 89 (1977).

       {¶ 17} Child custody issues under Ohio law fall within the coverage of one of two

statutes, R.C. 3109.04 or 2151.23, depending upon the circumstances. In re Hockstok, 98

Ohio St.3d 238, 2002-Ohio-7208, ¶ 13. R.C. 3109.04 applies to "any proceeding pertaining

to the allocation of parental rights and responsibilities for the care of a child," and provides

that if a trial court finds "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[.]" R.C. 3109.04(A) and 3109.04 (D)(2). R.C. 2151.23(A)(2) grants

jurisdiction to the juvenile court "to determine the custody of any child not a ward of another

court of this state." Because this case involves a custody dispute between a parent and

nonparent and did not originate from divorce proceedings, R.C. 3109.04(D)(2) does not

apply. In re Hockstok at ¶ 26.

       {¶ 18} In a R.C. 2151.23(A)(2) child custody proceeding between a parent and a

nonparent, the trial court may not award custody to the nonparent without first making a

finding of parental unsuitability, that is, without first determining that a preponderance of the

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

the child, or 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. In re Perales at syllabus.

Subsequently, the supreme court reiterated that "in custody cases between a natural parent

and nonparent, a parental unsuitability determination must be made and appear in the

record before custody can be awarded to a nonparent." In re Hockstok at ¶ 36.

       {¶ 19} However, a parental unsuitability finding is required only in the context of an

original custody determination between a parent and a nonparent. Anderson v. Anderson,

12th Dist. Warren No. CA2009-03-033, 2009-Ohio-5636, ¶ 17. Once an original custody

award has been made, the party seeking to modify the award must show a change of

                                               -5-
                                                                               Fayette CA2017-04-008

circumstances even if the noncustodial party is a parent and the custodial party is a

nonparent. Id.

        {¶ 20} We find the case is before us on an original custody determination. Father

and Mother were never married to one another. While the record indicates Father was

granted parenting time with J.S. following the end of his relationship with Mother, there is

no evidence of a prior adjudication or dispute between the parents regarding the custody of

J.S. Mother was therefore J.S.'s residential parent and legal custodian from the time of her

birth by operation of R.C. 3109.042(A), which provides, "An unmarried female who gives

birth to a child is the sole residential parent and legal custodian of the child until a court of

competent jurisdiction issues an order designating another person as the residential parent

and legal custodian." See In re S.S.L.S., 7th Dist. Columbiana No. 12 CO 8, 2013-Ohio-

3026. Father's custody motion did not trigger a modification of custody; rather, it sought an

initial custody determination. See id. The juvenile court's March 15, 2017 judgment entry

granting legal custody to Grandmother is therefore not a legal change or modification of

custody, but rather constitutes the initial custody determination.

        {¶ 21} Neither Perales nor Hockstok involved an abused, neglected, or dependent

child and both cases arose from a private custody dispute between a parent and nonparent.

Likewise, this case does not involve an abused, neglected, or dependent child and arose

from a custody dispute between Father and Grandmother. Consequently, the unsuitability

test under Perales and Hockstok, rather than the best interest standard, applies.2 Hence,

the juvenile court was required to find, by a preponderance of the evidence, that Father was

unsuitable, that is, that he had abandoned J.S., had contractually relinquished custody of




2. For the same reasons, neither In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, nor In re L.A.B., 12th Dist.
Fayette No. CA2012-03-008, 2012-Ohio-5010, two cases cited by Grandmother in opposition to Father's
argument, are applicable.
                                                    -6-
                                                                      Fayette CA2017-04-008

J.S., had become totally incapable of supporting or caring for J.S., or that an award of

custody to Father would be detrimental to J.S.

       {¶ 22} The juvenile court, however, never made a finding that Father was an

unsuitable parent before awarding legal custody of J.S. to Grandmother. Rather, the court

engaged solely in a best interest analysis, which is contrary to Perales and the duty placed

on the juvenile court. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 11.

The juvenile court's judgment entry further reflects the court engaged in a comparison

analysis between Father and Grandmother. However, "[t]his comparison is inappropriate

under a suitability test. The duty placed before the juvenile court is whether father is

unsuitable; that is, whether custody with father would be detrimental to the child." Id. "Only

after a finding of parental unsuitability, should the court then engage in a best-interest test

to determine if custody to the nonparent is in the child's best interest." Id. at ¶ 15.

       {¶ 23} Accordingly, we find the juvenile court erred by applying the best interest

standard to the facts of this case and failing to engage in a parental unsuitability analysis

before awarding legal custody of J.S. to Grandmother. Id. at ¶ 16; In re Hockstok, 2002-

Ohio-7208 at ¶ 29. The juvenile court's decision awarding legal custody to Grandmother is

therefore reversed and the case is remanded to the juvenile court for a redetermination of

custody under the correct legal standard of parental suitability. In re C.V.M. at ¶ 16; In re

S.S.L.S., 2013-Ohio-3026 at ¶ 32.

       {¶ 24} Father's second assignment of error is accordingly well-taken and sustained.

       {¶ 25} Assignment of Error No. 3:

       {¶ 26} THE TRIAL COURT'S DECISION WAS NOT IN THE BEST INTEREST OF

THE CHILD, WAS * * * AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND

[THE COURT] ABUSED ITS DISCRETION BY AWARDING CUSTODY TO THE

MATERNAL GRANDMOTHER.

                                              -7-
                                                                       Fayette CA2017-04-008

       {¶ 27} Father argues that the juvenile court's decision awarding legal custody of J.S.

to Grandmother is an abuse of discretion and against the manifest weight of the evidence.

Father's third assignment of error is moot given our determination that the juvenile court's

decision granting legal custody to Grandmother must be reversed and remanded.

       {¶ 28} Judgment affirmed in part and reversed in part, and cause remanded to the

juvenile court for further proceedings consistent with this opinion.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




                                             -8-
