B.W. v. J.V.B.W. v. J.V.
DECISION AND JUDGMENT
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Michael R. Voorhees, for appellant.
Alan J. Lehenbauer, for appellee.
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PER CURIAM
{¶ 2} Appellants recently filed notices of appeal from the January 8 and February 3-5, 2010 judgments of the Juvenile Court.2
{¶ 3} On January 29, 2010, appellee filed a motion to dismiss appellant‘s appeal of the January 8 judgment. Appellee argues the rulings contained in the January 8 judgment are not final and appealable. Appellants argue the January 8 judgment is a final appealable order and claim the juvenile court found, for the first time, appellants were not parties to these proceedings and “lacked standing” as prospective adoptive parents to challenge the parentage complaint.
THE JUDGMENTS ON APPEAL
{¶ 4} In the January 8 judgment, the juvenile court addressed several outstanding motions and objections raised by appellants. In this judgment, the juvenile court held as
{¶ 5} In the February 3 judgment, the juvenile court overruled appellants’ objections to the January 11, 2010 decision of the magistrate. The magistrate‘s decision recommended custody of G.W. be awarded to appellee.
{¶ 6} In the February 4 judgment, the juvenile court denied the guardian ad litem‘s request for a psychological evaluation/diagnostic assessment of appellee.
{¶ 7} On February 5, 2010, the juvenile court entered judgment as follows:
{¶ 8} “Plaintiff, B.W., is designated as the residential parent and legal custodian of the child, pending submission of a favorable home study of B.W. by the guardian ad litem. The home study shall be submitted to the court by February 4 * * *.3 If the home study is favorable Adoption by Gentle Care shall place the minor child with B.W. * * *.
{¶ 9} The juvenile court has not entered an order approving or adopting the aforementioned home study or finalizing the custody of G.W.
FINAL APPEALABLE ORDER
{¶ 10} In Christian v. Johnson, 9th Dist No. 24327, 2009-Ohio-3863, our colleagues in the Ohio Ninth District Court of Appeals provided a succinct summary on the law relating to final appealable orders in custody proceedings:
{¶ 11} “This Court‘s jurisdiction over trial court judgments extends only to final orders.
{¶ 12} Interim orders in child custody and related proceedings that remain subject to modification or final ruling by the trial court do not constitute final appealable orders under
{¶ 13} Based upon our review of the record and applicable law, we find the January 8, February 3, 4, and 5 judgments are not final appealable orders. The question before the court in determining whether any of these orders affects a substantial right is two fold. First, in the absence of an immediate appeal, would appellants be foreclosed
{¶ 14} As to the first question, none of the orders in the January 8, February 3 and 4 judgments are final and appealable. In the absence of a right to an immediate appeal, appellants would not be foreclosed from seeking appropriate relief, i.e. a challenge to the juvenile court‘s exercise of jurisdiction, once the juvenile court issues its final decision on appellee‘s parentage complaint and the custody of G.W. The court finds the January 8, February 3 and 4 judgments are interim decisions and not final appealable orders.
{¶ 15} Appellants argue the January 8 judgment is a final appealable order with respect to the juvenile court‘s finding appellants lacked standing as prospective adoptive parents to challenge appellee‘s parentage complaint.
{¶ 16} We agree a judgment finding appellants lacked standing to challenge the parentage complaint would be a final appealable order. However, as noted by appellee, the juvenile court first addressed the issue of standing in its July 24, 2008 judgment entry. The juvenile court found:
{¶ 17} “[T]he prospective adoptive parents do not have standing in this parentage action. * * * Additionally * * * the prospective adoptive parents are not proper parties to the parentage action” (Emphasis added.)
{¶ 18} The January 8 judgment did not address any new issues with respect to the juvenile court‘s ruling as to appellants’ standing as prospective adoptive parents. The juvenile court restates its findings in the July 24 judgment. Accordingly, the July 24,
{¶ 19}
{¶ 20} “5. Partial final judgment or order. If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties * * * a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims. * * *” (Emphasis added.)
{¶ 21} Thus, appellants retained the option of appealing the juvenile court‘s July 24, 2008 judgment finding they lacked standing within 30 days of that judgment, or within 30 days after the entry of the judgment disposing of the remaining claims in this case.
{¶ 22} Since appellants did not appeal the juvenile court‘s finding within 30 days, they cannot appeal that judgment until the juvenile court issues a final decision on the custody of G.W. See
{¶ 23} That brings us to the February 5 judgment. The February 5 judgment is also not a final appealable order. While the trial court designated appellee as the residential and legal custodian of G.W., the court‘s designation was contingent upon the juvenile court approving appellee‘s home study as favorable. Thus, the February 5
{¶ 24} Appellee also requests this court award attorney fees and costs pursuant to
{¶ 25} Appellee‘s motion to dismiss is granted and his request for attorney fees is denied. Furthermore, this case is dismissed in its entirety. All other pending motions are dismissed as moot. Appellants are ordered to pay the costs of this appeal pursuant to
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
Arlene Singer, J.
Thomas J. Osowik, P.J. CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.