[Cite as In re C.J.L., 2014-Ohio-1766.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

IN THE MATTER OF:                                 :      Case No. 13CA3545
                                                  :
        C.J.L. & K.R.L.                           :
                                                  :      DECISION AND
        Minor Children – Custody.                 :      JUDGMENT ENTRY

                                           RELEASED: 04/14/14
______________________________________________________________________
                            APPEARANCES:

Richard E. Wolfson, Portsmouth, Ohio, for appellant.

Joan M. Garaczkowski, Garaczkowski & Hoover, Portsmouth, Ohio, for appellees.
______________________________________________________________________
Harsha, J.

        {¶1}     Beth Howard appeals the trial court’s judgment continuing legal custody of

her children C.J.L. and K.R.L. with her parents, James and Betty Campbell. Howard

argues that the trial court erred by failing to grant her motion to terminate temporary

custody. She also contends because there was never a finding of parental unsuitability,

the court improperly based its custody determination on whether there had been a

change in circumstances and whether a change in custody would have been in the

children’s best interests.

        {¶2}     The record reflects that Howard agreed to grant the Campbells temporary

custody. Although the record is somewhat confusing, we conclude that the trial court

was exercising its neglect jurisdiction under R.C. 2151.23(A)(1). Because the order

granting the Campbells temporary custody had terminated by operation of law, the court

had to first consider whether the problems that led to the necessity of temporary

custody had been resolved or sufficiently mitigated. If so, the court should have
Scioto App. No. 13CA3545                                                                2

terminated the case and returned custody to Howard. If not, then it had discretion to

make a dispositional order in the best interests of the children.

       {¶3}   Therefore, we agree that the trial court erred by basing its custody

determination on whether there had been a change in circumstances and whether a

change in custody would have been in the children’s best interests.

                                         I. FACTS

       {¶4}   C.J.L. and K.R.L. were born in December 2003 and are the natural

children of Howard and Darren Bentley. At the time Howard was a minor and the

couple was unmarried. After their birth, she and the children continued to live with

Howard’s parents. On June 22, 2004, the Campbells filed separate petitions for

temporary custody of C.J.L. and K.R.L. “pursuant to 2151.03 of the Ohio Revised

Code,” the statute that defines a “neglected child.” In each petition the Campbells

alleged:

       The parties are in agreement it is in the minor child’s best interest to
       designate the maternal grandparents temporary custody of the minor child
       and it is necessary for financial and medical purposes for the minor child.
       The mother and father of the minor child * * * have never been married
       and are financially not able to care for the twins. The parties feel it is in
       the best interest of the minor child to designate the Petitioners temporary
       custody.

Howard and the father both signed waiver of service forms acknowledging receipt of the

petition, waiving service of the summons and entering an appearance in the case.

       {¶5}   The next day, “by agreement of the parties, and for good cause shown,”

the court granted the Campbells temporary custody of the children “pursuant to Ohio

Revised Code 2151.03.” The court awarded Howard and the father visitation according

to local rule and any other visitation that the parties could agree upon.
Scioto App. No. 13CA3545                                                                    3

       {¶6}    The next relevant filing occurred in February 2009 when the father filed a

motion to terminate the Campbells’ temporary custody and asked the court to grant him

custody. He also sought alternative relief.

       {¶7}    In October 2009, the court issued an “Agreed Judgment Entry,” signed by

Bentley (but not Howard) directing that “custody remain vested with [the Campbells],”

“until further order of the court.”

       {¶8}    Howard and the children continued living with the Campbells until 2010,

when she left their home and moved in with her husband. However, the children

remained in the Campbells’ home. In April 2011, Howard filed a motion “seeking

modification of a custody order by [the] Court on June 23, 2004,” “pursuant to Rule 19 of

the Ohio Rules of Juvenile Procedure.” She alleged that there had been “a change in

circumstances” and granting her legal custody would be in the “children’s best interest.”

In June 2011, the father also filed a motion to modify the court’s prior custody order and

asked the court to terminate the Campbells’ temporary custody and grant him

permanent custody of the children. He alleged that a change in circumstances

warranted this outcome.

       {¶9}    In March 2012, after failed mediation efforts, Howard filed a motion to

terminate the Campbells’ temporary custody pursuant to Juv.R. 14(A), or in the

alternative to modify it pursuant to Juv.R. 14(C). In the motion, Howard characterized

the Campbells’ temporary custody as originally granted on June 23, 2004, and

“renewed by agreement on October 02, 2009.”

       {¶10} The matter ultimately came on for a hearing on the parties’ pending

custody and contempt motions. After two days of testimony, the court issued its
Scioto App. No. 13CA3545                                                                    4

“FINDING OF THE COURT AND ENTRY.” The entry notes that a trial court “shall not

modify prior custody orders unless it follows the statutory requirements set forth in R.C.

3109.04(E)(1)(a),” which requires a change in circumstances and that a change in

custody is in the child’s best interests. The court found that there had been no change

in circumstances for the children or the Campbells since the parents agreed to

relinquish custody in 2004. The court also found a change in custody would not be in

the children’s best interests and ordered that “legal custody” of the children “shall

remain” with the Campbells. Howard appeals the trial court’s judgment. Bently does

not.

                             II. ASSIGNMENTS OF ERROR

       {¶11} Howard raises three assignments of error for our review:

       1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN BASING ITS
       DECISION ON O.R.C. §3109.04(E)(1)(a), IGNORING THE
       FUNDAMENTAL PARENTAL RIGHT OF THE PETITIONER-MOTHER
       AND ABSENT A DETERMINATION OF UNSUITABILITY.

       2. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
       TERMINATE RESPONDENT-APPELLEES’ TEMPORARY CUSTODY
       UPON MOTION OF THE PETITIONER-MOTHER, PURSUANT TO
       JUV.R. 14 AND O.R.C. §2151.01.1(B)(52), §2151.35, AND §2151.35.3.

       3. THE TRIAL COURT DECISION WAS CONTRARY TO THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                               III. STANDARD OF REVIEW

       {¶12} A trial court has broad discretion in determining custody matters.

Reynolds v. Goll, 75 Ohio St.3d 121, 124, 661 N.E.2d 1008 (1996). Consequently, we

will not reverse a trial court’s custody decision absent an abuse of discretion. Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). When applying an abuse

of discretion standard, we are not free to merely substitute our judgment for that of the
Scioto App. No. 13CA3545                                                                    5

trial court. In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). “A

deferential review in a child-custody case is appropriate because much may be evident

in the parties’ demeanor and attitude that does not translate to the record well.” Purvis

v. Hazelbaker, 181 Ohio App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, ¶ 9 (4th Dist.),

citing Davis at 419. “However, a trial court has no discretion to apply an improper legal

standard in a custody dispute between a parent and a nonparent. We review such

‘process flaws’ without deference to the trial court.” Purvis at ¶ 9.

                                 IV. LAW AND ANALYSIS

       {¶13} In her first assignment of error, Howard contends that the trial court erred

by applying R.C. 3109.04(E)(1)(a) and basing its custody determination on whether

there had been a change in circumstances and whether a change in custody would

have been in the children’s best interests. She argues that the court could not apply

this standard without first making a finding of parental unsuitability.

       {¶14} The Campbells respond that the court adjudicated the children neglected

in the 2004 agreed entry and granted them temporary custody. They assert that both

Howard and the father agreed to convert their temporary custody of the children to full

legal custody in the October 2009 entry. Therefore, the Campbells allege that the court

did not have to first find Howard unsuitable and did not err by applying R.C.

3109.04(E)(1)(a) to determine custody.

                               A. Parents’ Paramount Right

       {¶15}   “In a child-custody proceeding between a parent and a nonparent, a

court may not award custody to the nonparent without first determining that the parent is

unsuitable to raise the child, i.e., without determining by a preponderance of the
Scioto App. No. 13CA3545                                                                     6

evidence 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.” Purvis, 181 Ohio

App.3d 167, 2009-Ohio-765, 908 N.E.2d 489, at ¶ 10, citing In re Perales, 52 Ohio St.2d

89, 369 N.E.2d 1047 (1977), syllabus. Generally between parents and nonparents,

“‘parents who are “suitable” persons have a “paramount” right to the custody of their

minor children unless they forfeit that right by contract, abandonment, or by becoming

totally unable to care for and support those children.’” Masitto v. Masitto, 22 Ohio St.3d

63, 65, 488 N.E.2d 857 (1986), quoting Perales at 97. “[O]nce custody has been

awarded to a nonparent, the court will not apply the Perales unfitness standard to a later

request for custody modification. Instead, custody modification in that situation is

determined under the R.C. 3109.04 change-of-circumstances/best-interest standard.”

Purvis at ¶ 10. “In other words, if a parent has custody of her minor child, a custody

dispute with a nonparent is determined under the Perales standard; but if a custody

award has previously been made to a nonparent, the party seeking to modify that award

must show a change-in-circumstances/best-interest issue even if the noncustodial party

is a parent and the custodial party is a nonparent.” Id.

                            B. The Nature of Howard's grant

       {¶16} To address Howard’s first assignment of error, we review the procedural

history of this case. Much of the confusion in this matter arises from the Campbells’

original 2004 petition asking the court to grant them temporary custody. In the petition,

the Campbells sought temporary custody of the children “pursuant to 2151.03 of the

Ohio Revised Code,” because Howard and the father were “financially unable to care
Scioto App. No. 13CA3545                                                                      7

for the twins” and it would be the children’s “best interest.” R.C. 2151.03 defines

“neglected child” and includes any child, “[w]hose parents, guardian, or custodian

neglects the child or refuses to provide proper or necessary subsistence, education,

medical or surgical care or treatment, or other care necessary for the child’s health,

morals, or well being[.]” R.C. 2151.03(A)(3). However, the averments in the complaint

more closely meet the requirements for dependency under R.C. 2151.04(A). “Although

it is possible for a child to be both neglected and dependant, there is a clear distinction

between the two terms. Where as a neglected child lacks proper care because of the

fault of a parent…, the dependency case focuses instead upon the condition or

environment of the child.” Giannelli & Salvador, Ohio Juvenile Law, Section 28.2 (2013)

(footnotes omitted). Nonetheless, in its June 23, 2004 judgment entry, the court granted

the Campbells temporary custody of the children “pursuant to Ohio Revised Code

2151.03,” “by agreement of the parties, and for good cause shown * * *.” This entry was

“submitted by” the Campbells’ attorney and “approved by” the Campbells, Howard and

the father.

       {¶17} It is undisputed that the June 2004 entry only granted the Campbells

temporary custody. That entry was signed and “approved by” the Campbells, Howard

and the father. To the extext that the Campbells assert that Howard granted them full

legal custody of the children in the October 2009 entry, we disagree. That entry orders

that “custody remain vested with [the Campbells].” The only form of custody that had

rested with the Campbells prior to October 2009 was temporary custody. Therefore,

what “remained” was also temporary in nature. Moreover, that agreed entry was only

“approved by” the father’s attorney. Although the entry states Howard was present at
Scioto App. No. 13CA3545                                                                      8

the hearing, unlike the 2004 entry, she did not sign the 2009 entry. Thus, even if we

were to assume the October 2009 entry somehow transmuted the nature of the original

agreement, we reject the Campbells’ assertion that Howard was a party to the 2009

entry and granted them full legal custody of the children.

                              C. The Trial Court’s Jurisdiction

       {¶18} Next, we consider the jurisdictional basis for the trial court’s June 2004

order of temporary custody.

       {¶19} R.C. 2151.23 is titled “Jurisdiction of juvenile court” and states:

       (A) The juvenile court has exclusive original jurisdiction under the Revised Code
       as follows:

       (1) Concerning any child who on or about the date specified in the complaint,
       indictment, or information is alleged * * * to be a juvenile traffic offender or a
       delinquent, unruly, abused, neglected, or dependent child and, based on and in
       relation to the allegation pertaining to the child, concerning the parent, guardian,
       or other person having care of a child who is alleged to be an unruly or
       delinquent child for being an habitual or chronic truant;

       (2) Subject to divisions (G), (K), and (V) of section 2301.03 of the Revised Code,
       to determine the custody of any child not a ward of another court of this state * *
       *.

       {¶20} Under R.C. 2151.23(A)(1), the juvenile court has exclusive original

jurisdiction concerning any child alleged to be neglected. Under this section, “a public

or private party can initiate an action pursuant to R.C. 2151.27 to have a court

determine whether a child is neglected.” In re Shepherd, 4th Dist. Highland No.

00CA12, 2001 WL 802209, *6 (Mar. 26, 2001). Although we note there are numerous

procedural and substantive problems with the court proceeding under its neglect

jurisdiction, we conclude Howard waived any errors in this regard due to her

acquiescence in the proceedings and her failure to appeal the court’s June 2004
Scioto App. No. 13CA3545                                                                         9

judgment. In essence we conclude these irregularities were simply errors in the

exercise of jurisdiction, rather than a failure to invoke the court's subject matter

jurisdiction. See generally Pratts v. Hurley, 102 Ohio St.3d. 81, 2004-Ohio-1980, ¶ 10-

12. Therefore, we conclude that the court was exercising its neglect jurisdiction under

R.C. 2151.23(A)(1), based upon the wording of the complaint and that of the agreed

order of June 2004, both of which cite the neglect statute. But see State ex rel.

Swanson v. Hague, 11th Dist. Ashtabula No. 2009-A-0053, 2010-Ohio-4200 (holding

pleading deficiencies in a dependency action failed to invoke the court’s dependency

jurisdiction).

       {¶21} Once the court adjudicated the children neglected under R.C.

2151.353(A)(2) it could “commit the child[ren] to the temporary custody of a * * * relative

residing within or outside the state * * *.” However, “[t]here is a built-in time limit to any

award of temporary custody” under R.C. 2151.23(A)(1). In re Shepherd at *6.

Assuming there have been no extensions granted, “it must terminate one year after the

earlier of the date on which the complaint was filed or the date on which the child was

first placed into shelter care.” Id., citing R.C. 2151.353(F); Juv.R. 14(A).

       {¶22} Nevertheless, a parent “is not entitled to immediate custody of [the child]

because of the sunset provision contained in R.C. 2151.353(F).” Holloway v. Clermont

County Dept. of Human Servs., 80 Ohio St.3d 128, 130, 684 N.E.2d 1217 (1997).

Although temporary custody is terminated upon the passing of the “sunset date” in R.C.

2151.353(F), the juvenile court retains its general jurisdiction to make further

dispositional orders as it deems necessary to protect the child pursuant to R.C.
Scioto App. No. 13CA3545                                                                   10

2151.353(E)(1). In re Young Children, 76 Ohio St.3d 632, 637-638, 669 N.E.2d 1140

(1996).

       R.C. 2151.353(E)(1) provides in pertinent part that “[t]he court shall retain
       jurisdiction over any child for whom the court issues an order of disposition
       pursuant to division (A) of this section * * * until the child attains the age of
       eighteen * * * or the child is adopted.” It seems abundantly clear that this
       provision was intended to ensure that a child’s welfare would always be
       subject to court review. That is, given that a child, by virtue of being before
       the court pursuant to R.C. Chapter 2151, was at risk of some harm, the
       General Assembly provided for the child’s safety and welfare by ensuring
       that the juvenile court would retain jurisdiction over the child through the
       age of majority. R.C. Chapter 2151 places no limitation on this general
       jurisdiction.

Id. at 638. When the sunset date has passed and “the problems that led to the original

grant of temporary custody have not been resolved or sufficiently mitigated, courts have

the discretion to make a dispositional order in the best interests of the child. Where the

original problems have been resolved or sufficiently mitigated, courts may not make

further dispositional orders based on the original complaint.” Id.

       {¶23} In In re D.H., 4th Dist. Gallia No. 09CA11, 2009-Ohio-6009, we considered

whether a simple dismissal of the case is appropriate once the sunset provision in R.C.

2151.353(F) terminates temporary custody. In re D.H. at ¶ 35. We concluded:

       [t]o properly effectuate this legislative intent, before a juvenile court
       dismisses a complaint after finding a child dependent, it should expressly
       find that any problems that led to the necessity of temporary custody have
       been resolved or sufficiently mitigated. Both R.C. 2151.353 and In re
       Young Children compel such a requirement.

       If the court finds that those problems have not been resolved or sufficiently
       mitigated, then it has the power to make a further dispositional order under
       R.C. 2151.415. In re Young Children, 76 Ohio St.3d at 639, 669 N.E.2d
       1140. If the court finds those problems are resolved, it should order that
       the child be returned to the parent or appropriate legal custodian. Id. A
       simple dismissal is not in the best interest of the child and it is not within
       those six permissible dispositional orders as set forth by the legislature in
       R.C. 2151.353.
Scioto App. No. 13CA3545                                                                     11



Id. at ¶ 42-43.

       {¶24} Thus, because the trial court was proceeding under its neglect jurisdiction,

it had to first consider whether the problems that led to the necessity of temporary

custody had been resolved or sufficiently mitigated. See id. Only if the court found they

had not, did it have discretion to make a dispositional order in the best interests of the

children. See In re Young Children at 638.

       {¶25} Therefore, we agree that the trial court erred by applying R.C.

3109.04(E)(1)(a) and basing its custody determination on whether there had been a

change in circumstances and if a change in custody would have been in the children’s

best interests. Accordingly, we sustain Howard’s first assignment of error. This renders

her remaining assignments of error moot and we decline to address them. See App.R.

12(A)(1)(C).

                                     V. CONCLUSION

       {¶26} Howard only agreed to grant the Campbells temporary custody of the

children. In exercising its neglect jurisdiction under R.C. 2151.23(A)(1), the court erred

in continuing custody with the Campbells by applying R.C.3109.04(E)(1)(a). Thus, we

reverse the trial court’s judgment and remand for proceedings consistent with this

decision and the holdings in In Re: Young, supra and In Re: D.H., supra.

                                                                 JUDGMENT REVERSED
                                                                AND CAUSE REMANDED.
Scioto App. No. 13CA3545                                                                 12

                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellees shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

* Powell, J.: Concurs in Judgment and Opinion.
Abele, P.J.: Dissents.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge


                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.


* Michael E. Powell, from the Twelfth Appellate District, sitting by assignment of The
Supreme Court of Ohio in the Fourth Appellate District.
