[Cite as In re A.M., 2017-Ohio-7690.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

IN RE: A.M.                                           C.A. No.       28285



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   LC 13-02-0045

                                 DECISION AND JOURNAL ENTRY

Dated: September 20, 2017



        SCHAFER, Judge.

        {¶1}    Appellant, A.R. (“Mother”), appeals from the judgment of the Summit County

Court of Common Pleas, Juvenile Division, that retained the child, A.M., in the legal custody of

prior agreed legal custodians. This Court reverses and remands.

                                                 I.

        {¶2}    Mother is the biological mother of A.M., born March 26, 2010.1 In June 2012,

L.P and B.P., friends of Mother, acquired physical possession of the child. Nine months later

they filed a private legal custody action in the juvenile court. Based on Mother’s assertions at a

status hearing that (1) she was unfit to care for the child due to extreme financial hardship, and

(2) it was in the child’s best interest, the trial court placed the child in the temporary custody of

L.P. and B.P. At the hearing on the complaint, Mother agreed that the child should be placed in



1
  J.M. was alleged to be the biological father, but there is no evidence in the record that he
established paternity. Although he was served and noticed for hearings, he never appeared. He
is not a party to this appeal.
                                                 2


the legal custody of L.P. and B.P. The juvenile court found parental unfitness based on Mother’s

contractual relinquishment of custody, and it awarded legal custody of the child to L.P. and B.P.

Mother retained residual parental rights and responsibilities.

       {¶3}    Seven months later, Mother moved to modify legal custody. At the hearing on the

matter, the parties reached an agreement wherein Mother withdrew her motion for legal custody.

The parties agreed that A.M. would remain in the legal custody of L.P. and B.P., and that Mother

would continue to have visitation with the child.

       {¶4}    Fourteen months later, Mother again moved for a change of custody. At the

hearing on Mother’s motion, the magistrate informed the parties that she was bifurcating the

hearing in that she would only consider evidence on the threshold issue of whether a change in

circumstances of the legal custodians and/or child had occurred since the last custody order. She

explained that she would hear evidence regarding the best interest of the child at a later date only

if Mother met her threshold burden of demonstrating the requisite change of circumstances.

       {¶5}    At the conclusion of the hearing, the magistrate granted the parties leave to file

post-hearing briefs on the issue of a change in circumstances. Mother argued that (1) the parties’

prior agreement that incorporated a requirement that the legal custodians must request a hearing

to determine the best interest of the child, should they plan to move out of Summit County,

presupposed that such a move constituted the requisite change in circumstances; and (2) if the

moving party must nevertheless present evidence establishing a change in circumstances, Mother

had met her burden. The legal custodians responded that Mother failed to present evidence of a

substantial and adverse change in circumstances. Mother replied, arguing that the requisite

change in circumstances need not be adverse. Subsequently, the magistrate found that Mother

had not established the threshold issue that there was any change of substance in the
                                                      3


circumstances of the child and/or legal custodians. The magistrate denied Mother’s motion to

modify legal custody, ordered that the child remain in the legal custody of the current custodians,

and cancelled the hearing on best interest of the child.

        {¶6}    Mother filed timely objections, raising the same arguments as those in her post-

hearing brief. The legal custodians responded in opposition. The juvenile court overruled

Mother’s objections. Relying on In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, the trial

court concluded that R.C. 3109.04(E)(1)(a) governed the modification, and that bifurcation was

not inappropriate because the establishment of a change in circumstances was a threshold issue

to be determined pursuant to that statutory provision. The juvenile court found that Mother had

not presented evidence demonstrating a consequential change in circumstances, overruled the

objections, and retained the child in the legal custody of L.P. and B.P. Mother filed a timely

appeal, raising two assignments of error for review. This Court addresses the second assignment

of error first, as it is dispositive of the appeal.

                                                      II.

                                        Assignment of Error II

        The Trial Court denied Mother due process of law by bifurcating the Trial
        and requiring her to prove a change of circumstances before considering
        whether it was in the minor child’s best interest that custody be returned to
        her.

        {¶7}    Mother argues that the juvenile court erred by requiring her, as a threshold matter,

to prove that there had been a change of substance in the circumstances of the child and/or the

legal custodians before it would consider whether a return of custody to Mother was in the

child’s best interest. This Court agrees.

        {¶8}    Although Mother raises issues implicating due process (arguing she had no notice

prior to hearing that the sole issue before the court related to a change in circumstances), and
                                                 4


waiver (arguing the parties’ prior agreed entry relating to custody incorporated a provision

vitiating the requirement to prove a change in circumstances where the legal custodians intended

to relocate to another county), this Court is compelled to reverse on different grounds.

Specifically, because the juvenile court applied the incorrect legal standard to determine whether

a return of legal custody to Mother was warranted, we reverse and remand the matter for further

proceedings. See In re I.S., 9th Dist. Summit No. 24763, 2009-Ohio-6432, ¶ 1 (irrespective of

the appellant’s argument, reversing and remanding for a new hearing “because the parties and

the trial court focused on the wrong legal standard throughout the proceedings in the trial

court.”). As we further clarified, “[i]f it is obvious that a trial court applied the wrong legal

standard to the evidence before it, this Court must reverse and remand for the trial court to apply

the appropriate legal standard in the first instance.” Id. at ¶ 8, citing Copley Twp. Bd. of Trustees

v. Lorenzetti, 146 Ohio App.3d 450, 2001-Ohio-1662, ¶ 20 (9th Dist.).

       {¶9}    The juvenile court purported to use the standard set forth in R.C. 3109.04(E)(1)(a)

relevant to a modification of a prior decree allocating parental rights and responsibilities. That

provision provides, in relevant part:

       The court shall not modify a prior decree allocating parental rights and
       responsibilities for the care of children unless it finds, based on facts that have
       arisen since the prior decree or that were unknown to the court at the time of the
       prior decree, that a change has occurred in the circumstances of the child, the
       child’s residential parent, or either of the parents subject to a shared parenting
       decree, and that the modification is necessary to serve the best interest of the
       child.

R.C. 3109.04(E)(1)(a).      This provision further favors “retain[ing] the residential parent

designated by the prior decree” unless certain other factors exist. Id.

       {¶10} In considering Mother’s motion to modify legal custody, the juvenile court as a

practical matter applied the standard set forth in R.C. 2151.42(B), which is applicable in cases
                                                   5


where a child who was previously adjudicated dependent, neglected, or abused was placed in the

legal custody of some individual(s). That provision states, in relevant part:

       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.

R.C. 2151.42(B). Both R.C. 3109.04(E)(1)(a) and R.C. 2151.42(B) require the moving party to

demonstrate a change in circumstances as a threshold matter.

       {¶11} The juvenile court relied on In re James, 113 Ohio St.3d 420, 2007-Ohio-2335,

for the proposition that it must first determine whether a change in circumstances has occurred

before considering whether a modification of legal custody is in the best interest of the child. In

re James, however, is distinguishable in its procedural posture, and provides no authority for

requiring a parent to demonstrate a change in circumstances of the child or legal custodian as a

prerequisite to regaining legal custody in a private custody matter.

       {¶12} In re James involved a child whom the juvenile court had adjudicated dependent

and abused based on allegations by a public child welfare agency. Id. at ¶ 5. Grandparents were

awarded legal custody. Some years later, the parents moved for a return of legal custody, which

the trial court granted. The appellate court affirmed, holding that the requirement, pursuant to

R.C. 3109.04(E)(1)(a), to establish a change of circumstances for the child or legal custodian was

unconstitutional as applied to parents, as an infringement upon their fundamental right to raise

their children. In re James, 163 Ohio App.3d 442, 2005-Ohio-4847, ¶ 19 (1st Dist.). The

appellate court held that the only consideration in determining whether to return a child to a

parent’s custody is the best interest of the child. Id.
                                                6


       {¶13} The Supreme Court of Ohio reversed, addressing the constitutionality of R.C.

3109.04(E)(1)(a) which had been applied below in the case, and the very narrow issue:

       whether a trial court, when modifying a prior decree allocating parental rights and
       responsibilities for the care of children, should consider only whether the
       modification is necessary to serve the best interest of the child, or whether the
       trial court has an obligation to adhere to the conjunctive statutory requirements to
       find both a change in the circumstances of the child, the residential parent, or
       either of the parents subject to a shared-parenting decree, and that the
       modification is necessary to serve the best interest of the child.

In re James, 2007-Ohio-2335, at ¶ 9. The majority acknowledged the concerns of the three

dissenting members of the high court who wrote that R.C. 3109.04(E) was not applicable to this

custody dispute. The majority explained: “We have used R.C. 3109.04(E)(1)(a) because the

constitutional challenge before us arose from that statute and from the appellate court’s analysis

and conclusion.” 2007-Ohio-2335, at ¶ 24. It then compared R.C. 2151.42(B), the language of

which asserts that awards of legal custody where a child has been adjudicated dependent,

neglected, or abused are intended to be permanent, while any modification requires a

demonstration of a change in circumstances. Id. at ¶ 26. The majority concluded that this

statute, which this Court would conclude was in fact applicable to the custody dispute in In re

James, “is more compelling on the issue of permanency than is R.C. 3109.04(E)(1)[.]” Id.

       {¶14} In the instant case, no public or private child welfare agency filed a complaint

alleging that A.M. was a dependent, neglected, or abused child. Instead, this was a private legal

custody action, and the child was never adjudicated dependent, neglected, or abused.

Accordingly, R.C. 2151.42(B) by its plain language is not applicable to a modification of legal

custody under these circumstances. Moreover, this case does not involve a modification of

parental rights and responsibilities as contemplated by R.C. 3109.04(E)(1), because the dispute is

not between a residential and nonresidential parent, or parents subject to a shared parenting
                                                  7


decree. Rather, the dispute is between a parent and third parties who hold legal custody, in this

case by prior agreement of the parties. That the parties below and the trial court improvidently

acquiesced in the application of R.C. 3109.04(E)(1)(a) does not require this Court to follow suit.

See In re I.S., 2009-Ohio-6432, at ¶ 8.

       {¶15} The Supreme Court of Ohio wrote that child custody disputes fall under either

R.C. 3109.04 or R.C. 2151.23, depending on the circumstances. In re Hockstock, 98 Ohio St.3d

238, 2002-Ohio-7208, ¶13. Moreover, within this statutory framework, “the overriding principle

in custody cases between a parent and nonparent is that natural parents have a fundamental

liberty interest in the care, custody, and management of their children.” Id. at ¶ 16, citing

Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Murray, 52 Ohio St.3d 155, 157 (1990).

This Court, too, recognizes the significant rights at stake in this case:

       Constitutional substantive due process “‘provides heightened protection against
       government interference with certain fundamental rights and liberty interests.’”
       Troxel v. Granville, 530 U.S. 57, 65 (2000), quoting Washington v. Glucksberg,
       521 U.S. 702, 720 (1997). It is well established that a parent’s interest in the care,
       custody, and control of his or her child “is perhaps the oldest of the fundamental
       liberty interests recognized * * *.” Troxel, 530 U.S. at 65.

In re G.S., 9th Dist. Summit No. 28050, 2016-Ohio-7471, ¶ 13.

       {¶16} Mother contractually relinquished custody of the child in this case by entering

into an agreement whereby L.P. and B.P. would attain legal custody. Contractual relinquishment

of this type is adequate to support a finding of parental unsuitability. In re Hockstock at ¶ 17.

Even so, “[a]lthough a parent has been adjudged unsuitable, such a determination ‘does not,

however, permanently foreclose the right of either parent to regain custody, because it is not a

termination of all residual parental rights, privileges, and responsibilities[.]’” In re G.S. at ¶ 17,

quoting In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 23.
                                                 8


        {¶17} This Court concludes that, within the circumstances and procedural posture of this

case, in considering Mother’s motion to modify legal custody, the juvenile court should have

only considered whether such a modification was in the best interest of the child. Accordingly,

we would analyze this matter within the context of R.C. 2151.23. In so concluding, we are

persuaded by the reasoning of the Fifth District Court of Appeals. Our sister court has written:

        R.C. 2151.23(A)(2) clearly grants specific statutory authority to the juvenile court
        to determine custody issues of a parent vis-à-vis a non-parent. Once the juvenile
        court has exercised jurisdiction over a child, the court has continuing jurisdiction
        to determine what is in the best interests of the child. As a result, a change of
        circumstances is not a prerequisite to the resumption of the juvenile court’s
        jurisdiction. Furthermore, the philosophy of requiring a change of circumstances
        in divorce custody issues is based upon the presumption that parents are equals
        and must be treated as such. In a juvenile proceeding where the parties are not on
        equal footing, the change of circumstances standard is not applicable.

In re E.Z.H., 5th Dist. Holmes No. 12CA0015, 2013-Ohio-3494, ¶ 18, quoting Culp v. Burkhart,

5th Dist. Tuscarawas No. 04AP010006, 2004-Ohio-4425, ¶ 9.

        {¶18} Our conclusion is bolstered by the Supreme Court of Ohio’s recognition that R.C.

Chapter 2151 provides for flexibility in child custody cases, eschewing the general rule that

“permanency of final orders is a paramount principle[.]” In re Hockstock, 2002-Ohio-7208, at ¶

35. The high court reasoned:

        Such flexibility is codified in R.C. 2151.011(B)[(22)], which defines the term
        “legal custody” as “a legal status that vests in the custodian the right to have
        physical care and control of the child * * * subject to any residual parental rights,
        privileges, and responsibilities.” (Emphasis added.) This definition of legal
        custody is statutory codification of the principle that in child custody, permanency
        of final orders is not always of the highest priority.”

Id. at ¶ 35.

        {¶19} This Court acknowledges that the primary issue in Hockstock was whether the

trial court could make an initial award of legal custody to a nonparent without first making a

finding of parental unsuitability. The high court concluded that the trial court could not. Id. at
                                                 9


syllabus. However, recognizing the potential burden on the trial court arising out of parents’

petitions for new suitability determinations, the Hockstock court clarified:

       [O]ur holding in this case does not change the well-established rule * * *2 that
       after the legal custody determination is made, the best-interest-of-the-child
       standard should be used for any custody modification petitions filed by a natural
       parent. A parent should be given only one unsuitability determination, which
       should come at the time of the legal custody hearing. After such a determination
       has established, or taken away, a parent’s fundamental custodial rights, the focus
       must shift from the rights of the parents to the rights of the child. A child’s rights
       are effectuated through the use of the best-interest-of-the-child standard for
       subsequent custodial modification requests.

2002-Ohio-7208, at ¶ 38.

       {¶20} The juvenile court in the instant case required Mother to establish as a threshold

matter that there had been a change of substance in the circumstances of the child and/or legal

custodians before it would consider whether a modification of legal custody was in the best

interest of the child. Irrespective of whether the juvenile court applied the standard in R.C.

3109.04(E)(1)(a) or R.C. 2151.42(B), neither is applicable to this situation, as both require a

threshold determination of whether a change in circumstances has occurred.               This Court

concludes that such a requirement places too high a burden on a parent whose child has not been

adjudicated dependent, neglected, or abused; or who does not seek to disrupt a child from the

custody of the other parent, where the two are on equal footing. Application of the best interest

of the child standard to a modification of legal custody case initiated by a parent against a


2
  The high court cited to R.C. 3109.04(B)(1), as that case originated in the domestic relations
court, rather than the juvenile court. R.C. 2151.23(F)(1) directs the juvenile court to “exercise its
jurisdiction in child custody matters in accordance with [R.C.] 3109.04 * * *.” The general
directive in R.C. 3109.04(B)(1) to consider the best interest of the child in determining whether
to modify a prior custody order comports with a major purpose of R.C. Chapter 2151, this is,
“[t]o provide for the care, protection, and mental and physical development of children subject to
[this chapter], whenever possible, in a family environment, separating the child from the child’s
parents only when necessary for the child’s welfare or in the interest of public safety[.]”
(Emphasis added.) R.C. 2151.01(A).
                                                 10


nonparent legal custodian, under these circumstances, serves to protect the welfare of the child,

while recognizing a parent’s ongoing fundamental rights. As the juvenile court imposed an

additional burden on Mother, and declined to consider the best interest of the child upon finding

that Mother did not meet that additional burden, we remand the matter to the trial court for

reconsideration of Mother’s motion to modify legal custody, in consideration of whether or not

modification would be in the best interest of the child.

       {¶21} As the juvenile court failed to apply the correct legal standard to Mother’s motion

to modify legal custody, her second assignment of error is sustained.

                                      Assignment of Error I

       The Trial Court abused its discretion in failing to find a change of
       circumstances warranting a Trial to consider modification of legal custody of
       the minor child.

       {¶22} Mother argues that the juvenile court erred by failing to find a change in

circumstances warranting its further consideration of whether a modification of legal custody

was in the child’s best interest. Based on our resolution of the second assignment of error, the

first assignment of error has been rendered moot, and we decline to address it. See App.R.

12(A)(1)(c).

                                                III.

       {¶23} Mother’s second assignment of error is sustained. This Court declines to address

the first assignment of error. The judgment of the Summit County Court of Common Pleas,

Juvenile Division, is reversed and the cause remanded for further proceedings consistent with

this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CALLAHAN, J.
CONCURS.

HENSAL, P. J.
DISSENTING.

       {¶24} I respectfully dissent as to the majority’s resolution of the second assignment of

error. There is an ongoing lack of clarity in the law regarding the applicable standard when a

parent seeks to regain legal custody from a nonparent legal custodian. See, e.g., Polhamus v.

Robinson, 3d Dist. Logan No. 8-16-11, 2017-Ohio-39 (recognizing a three-way private shared

custody agreement and requiring a parent to show a change of circumstances and best interest
                                                12


before modifying legal custody, relying on the test applicable in cases where the child has been

adjudicated dependent, neglected, or abused).         The issue warrants consideration by the

legislature, particularly as there is no clear statutory guidance for the courts when considering

whether to modify legal custody as between a parent and a non-parent in a private custody case.

Under the facts of this case, I would not find that it was error for the juvenile court to consider,

as a threshold matter, whether Mother had demonstrated a change in the circumstances of the

child or the legal custodians.

       {¶25} As to the merits of Mother’s due process argument, I would conclude that she did

not preserve the issue for appellate review. She failed to object below, and merely sought, and

was given, the opportunity to reorder her witnesses at the hearing.         Accordingly, I would

overrule the second assignment of error.

       {¶26} As to Mother’s first assignment of error which the majority declined to address as

moot, I would overrule that assignment of error. Based on a review of the record, I would

conclude that the juvenile court did not abuse its discretion when it found no change of

circumstances warranting a modification of legal custody.


APPEARANCES:

ROBERT ROE FOX, Attorney at Law, for Appellant.

HOLLY KEHRES FARAH, Attorney at Law, for Appellee.
