C.H. v. O’MALLEY, JUDGE, ET AL.
No. 2018-1191
Supreme Court of Ohio
October 29, 2019
2019-Ohio-4382
Submitted July 9, 2019
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-4382
C.H. v. O’MALLEY, JUDGE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as C.H. v. O’Malley, Slip Opinion No. 2019-Ohio-4382.]
Prohibition—In a child-custody proceeding, Ohio has home-state jurisdiction to make the first child-custody determination of a particular child when Ohio is the child’s home state on the date of the commencement of the proceeding—Juvenile-court judge and magistrate do not patently and unambiguously lack jurisdiction—Writ denied.
(No. 2018-1191—Submitted July 9, 2019—Decided October 29, 2019.)
IN PROHIBITION.
Per Curiam.
{¶ 1} In this original action, relator, C.H., seeks a writ of prohibition to bar respondents, Cuyahoga County Juvenile Court Judge Jennifer L. O’Malley and her
The evidence in the record
{¶ 2} A.H., C.H.’s daughter, gave birth to E.J.H. on April 22, 2005, in Maricopa County, Arizona. The birth certificate did not identify the child’s father.
{¶ 3} According to the evidence that has been submitted in this case, A.H. is alleged to have addiction issues with alcohol, marijuana, and methamphetamines, which has resulted in her having been arrested and hospitalized in the past. On April 5, 2017, the Superior Court in Maricopa County, Arizona, issued a final order of adoption by which C.H. adopted E.J.H. In re adoption of M.S.H. and E.J.H., Maricopa S.C. No. JA51485.
{¶ 4} Two months later, A.H. drove from Arizona to Ohio with E.J.H., arriving at Cory Osley’s home in Parma on or about June 20, 2017. Osley claims to be E.J.H.’s biological father and claims that E.J.H. has been living with him since June 20, 2017.
{¶ 5} On August 23, 2017, Osley filed an application to determine the custody of E.J.H. in the Cuyahoga County Court of Common Pleas, Juvenile Division. In re E.J.H., Cuyahoga C.P. No. CU 17 112728. He also filed a motion for temporary emergency custody, alleging that E.J.H. “has been the victim of continual physical and emotional abuse perpetrated by his maternal grandmother,
{¶ 6} In his pleadings, Osley represented that A.H. had “voluntarily relinquished possession of [their] son to [him]” and that A.H. “indicated that she wanted [their] son to reside with [him] permanently.” Although Osley informed the juvenile court that E.J.H. had been residing with C.H. before June 20, 2017, he did not inform the court that C.H. had legally adopted E.J.H.
{¶ 7} The case was assigned to Judge Rini. The next day, August 24, 2017, the magistrate appointed a guardian ad litem and granted Osley temporary emergency custody so that E.J.H. could be enrolled in school. In a hearing on September 26, 2017, C.H. informed the magistrate of the Arizona adoption order. And A.H. “advised [the court] that she wished to have the child see his Father for the summer only rather than living with him.” Without waiving her right to contest jurisdiction, C.H. consented to E.J.H. remaining in Ohio “until the next hearing.” The magistrate ordered E.J.H. to be placed in Osley’s temporary emergency custody.
{¶ 8} The magistrate thereafter issued orders maintaining the status quo of the case until the end of the 2017-2018 school year. According to the magistrate, “Legal Guardian [(C.H.)] is in agreement with the child remaining in Ohio but refuses to give up custody or consent to the jurisdiction of the State of Ohio as to custody proceedings for the child.”
{¶ 9} In June 2018, the magistrate, after a hearing, rejected C.H.’s challenge to Ohio’s jurisdiction over the case and set the matter for trial. Approximately one month later, a privately retained attorney appeared on C.H.’s behalf for the first time. C.H. then filed a motion asking the court to vacate all the previous orders that had been made in the case, to continue the trial date, and to order that E.J.H. be returned to the custody of C.H. On August 9, the magistrate again extended the temporary emergency-custody order and reserved judgment on the jurisdictional
Procedural history
{¶ 10} C.H. commenced this action for a writ of prohibition on August 21, 2018. Respondents (collectively, “Judge O’Malley“) filed an answer and a motion for judgment on the pleadings. We denied the motion and granted an alternative writ and set a briefing schedule in accordance with
Analysis
{¶ 11} Three elements are necessary for a writ of prohibition to issue: the exercise of judicial power, the lack of authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However, if the absence of jurisdiction is patent and unambiguous, a petitioner need not establish the third prong, the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
{¶ 12} The first element is not in dispute: Judge O’Malley concedes that she has exercised, and will continue to exercise, judicial authority.
{¶ 13} With respect to the remaining elements, Judge O’Malley contends that jurisdiction exists under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA“). The UCCJEA, codified in Ohio at
{¶ 14} E.J.H. arrived in Ohio on or about June 20, 2017. Osley commenced the custody proceedings two months later, on August 23, 2017, less than the 6 months necessary to establish Ohio as E.J.H.’s home state. Therefore, Ohio did not have home-state jurisdiction over those proceedings. See id. at ¶ 44 (holding that the failure to satisfy the six-month requirement for home-state status is a jurisdictional defect).
{¶ 15} In her June 26, 2018 pretrial order, the magistrate concluded that the juvenile court had jurisdiction because “[t]he child ha[d] remained in Ohio for a period longer than 6 months.” But the duration of the child’s stay during the pendency of custody proceedings is not relevant to the jurisdictional analysis. The statute specifically requires the child to have resided in Ohio with a parent or a person acting as a parent for at least six consecutive months immediately preceding “the commencement of a child custody proceeding.” (Emphasis added.)
{¶ 16} Judge O’Malley appropriately concedes that Ohio did not have home-state jurisdiction over E.J.H. as of the date that Osley filed his initial custody action. But that concession does not end the home-state-jurisdiction analysis.
{¶ 17} On September 6, 2018, after C.H. filed her complaint for a writ of prohibition, Osley filed a
{¶ 18} ” ‘A dismissal without prejudice leaves the parties as if no action had been brought at all.’ ” Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999), quoting DeVille Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). Thus, by dismissing and then refiling his application, Osley commenced new custody proceedings. And by the time he filed the new application, on September 6, 2018, E.J.H. had been in Ohio continuously for over one year, more than enough time to establish home-state jurisdiction under
{¶ 19} C.H. contends that the dismissal of the first application is irrelevant. According to C.H., “[i]t is the date of the first commencement of the action that matters for purposes of determining whether six months have been reached.” (Emphasis sic.) But the case she cites, State ex rel. M.L. v. O’Malley, 144 Ohio St.3d 553, 2015-Ohio-4855, 45 N.E.3d 971, is distinguishable.
{¶ 20} The child in O’Malley was born in Ohio in 2010, and resided in Ohio continuously through April 2011, when the father filed a custody application in Cuyahoga County. Id. at ¶ 2, 13. In May 2011, the mother moved the child to New Jersey. Id. at ¶ 2. Despite the fact that the mother was never served a copy of the father’s custody application, the magistrate issued an order granting custody of the child to the father. Id. That custody order was vacated by the court of appeals based on failure of service. Id. at ¶ 14; see also In re M.A.H., 8th Dist. Cuyahoga No. 97963, 2012-Ohio-2318, ¶ 25. In July 2012, the father filed a second application for custody of the child in the Cuyahoga County Juvenile Court under a new case number. O’Malley at ¶ 4. Subsequently, the mother sought a writ of
{¶ 21} Our decision to deny a writ of prohibition in O’Malley was squarely based on the fact that the first application was never dismissed. By contrast, Osley did dismiss his first application under
{¶ 22} Ohio was E.J.H.’s home state as of September 6, 2018, when Osley filed the pending custody application. We therefore conclude that Judge O’Malley and her designated magistrate have jurisdiction over that pending action under
Writ denied.
FRENCH, FISCHER, DEWINE, and DONNELLY, JJ., concur.
O’CONNOR, C.J., dissents.
KENNEDY, J., dissents, with an opinion joined by STEWART, J.
KENNEDY, J., dissenting.
Facts and Procedural History
{¶ 24} A.H. gave birth to E.J.H. in Maricopa County, Arizona, on April 22, 2005. Cory Osley learned of the child’s birth and believed himself to be the child’s biological father, but he did not comply with Arizona’s requirements for claiming paternity or registering as a putative father. Under Arizona law, Osley waived his right to be notified of any judicial hearing regarding E.J.H.’s adoption and his consent to the adoption was not required. See
{¶ 25} A.H. brought E.J.H. to Ohio in June 2017. Osley claimed that A.H. “voluntarily relinquished possession” of the child to him and that A.H. “indicated
{¶ 26} On August 23, 2017, Osley filed a motion in the Cuyahoga County Court of Common Pleas, Juvenile Division, seeking an order granting him temporary emergency custody over E.J.H. Osley alleged that A.H. was addicted to drugs and alcohol, that E.J.H. had been “the victim of continual physical and emotional abuse perpretrated [sic] by [C.H.], his mother and his mother’s boyfriend,” and that Osley could not enroll E.J.H. in school without an order granting Osley temporary emergency custody. The next day, the magistrate granted Osley temporary emergency custody in order to allow him to enroll E.J.H. in school but made no finding that E.J.H. had been subjected to or threatened with mistreatment or abuse; rather, the magistrate only stated that she “ha[d] concerns about A.H.’s substance abuse problems.”
{¶ 27} The magistrate held a second hearing on September 26, 2017, at which C.H. and A.H. appeared and presented evidence that C.H. had legally adopted E.J.H. And according to the magistrate, A.H. told the court that “she [had] wished to have the child see [Osley] for the summer only rather than living with him.” Questioning the validity of the adoption and referring to C.H. as E.J.H.’s “purported legal guardian,” the magistrate continued the child’s placement in the temporary emergency custody of Osley and prohibited C.H. from removing E.J.H. from the juvenile court’s jurisdiction. And again, the magistrate made no finding that E.J.H. had been subjected to or threatened with mistreatment or abuse.
{¶ 28} On December 20, 2017, the magistrate issued an order maintaining the status quo until the end of E.J.H.’s 2017-2018 school year. And in an order dated June 26, 2018, the magistrate recognized C.H. as E.J.H.’s “Legal Mother” and found that the court “lack[ed] jurisdiction to void the Arizona adoption.” Nonetheless, the magistrate also found that the court had jurisdiction over the
{¶ 29} C.H. obtained legal counsel and on July 30, 2018, moved to vacate all of the magistrate’s previous orders and to have E.J.H. returned to her, arguing that Ohio courts lacked jurisdiction over the child-custody dispute pursuant to
{¶ 30} C.H. commenced this action for a writ of prohibition on August 21, 2018, against the juvenile-court judge and magistrate. On September 6, 2018, Osley filed a
{¶ 31} A little more than five months after the juvenile-court judge and magistrate answered the complaint and moved for judgment on the pleadings, we
{¶ 32} For the following reasons, Judge O’Malley and her designated magistrate patently and unambiguously lack jurisdiction over E.J.H.’s juvenile case and we should grant the requested writ of prohibition.
Prohibition
{¶ 33} “Prohibition is an extraordinary writ and we do not grant it routinely or easily.” State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 536, 540, 660 N.E.2d 458 (1996). To be entitled to a writ of prohibition, the relator bears the burden to establish that the respondent is about to exercise or has exercised judicial power, that the exercise of that power is unauthorized by law, and that denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. R.W. v. Williams, 146 Ohio St.3d 91, 2016-Ohio-562, 52 N.E.3d 1176, ¶ 13. “Even if an adequate remedy exists, a writ may be appropriate when the lack of jurisdiction is patent and unambiguous.” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Court of Common Pleas, Probate Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 19.
The UCCJEA
{¶ 34} The National Conference of Commissioners on Uniform State Laws adopted the UCCJEA in 1997 to provide uniform standards for determining which states may exercise jurisdiction over child-custody determinations. See UCCJEA, Prefatory Note, 9 U.L.A. 649, 650 (1997). It sought to prevent “jurisdictional
Priority of the Home State
{¶ 35} The UCCJEA is codified in
{¶ 36} According to
Except as otherwise provided in section 3127.18 of the Revised Code [pertaining to temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial determination in a child custody proceeding only if one of the following applies:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. (2) A court of another state does not have jurisdiction under division (A)(1) of this section or a court of the home state of the child has declined to exercise jurisdiction on the basis that this state is the more appropriate forum under section 3127.21 or 3127.22 of the Revised Code, or a similar statute of the other state, and both of the following are the case:
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3) All courts having jurisdiction under division (A)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 3127.21 or 3127.22 of the Revised Code or a similar statute enacted by another state.
(4) No court of any other state would have jurisdiction under the criteria specified in division (A)(1), (2), or (3) of this section.
{¶ 37} The first step then, is to determine whether Ohio was E.J.H.’s “home state” when Osley commenced the proceedings at issue.
The Voluntary-Dismissal Rule Does Not Apply in Determining Which State Is the Home State
{¶ 38} Judge O’Malley concedes that when Osley “commenced his child custody proceeding on August 23, 2017, Ohio was not [E.J.H.’s] ‘home state’
{¶ 39} That argument is flawed. This court has never specifically held that a child-custody proceeding may be voluntarily dismissed and refiled pursuant to
{¶ 40}
{¶ 41} For this reason, “[i]t is well understood that the substantive and procedural rules that are applicable in the unique context of juvenile court proceedings are quite different from those applicable during criminal or civil proceedings in courts of general jurisdiction.” In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, 44 N.E.3d 239, ¶ 15. As the Ninth District Court of Appeals has explained:
A custody hearing is not a civil dispute between a plaintiff and a defendant, but a status case concerning a child. The rules must provide the courts with the flexibility to determine what is in the best interest of each child; they do not exist to provide parties with procedural tactics for manipulating the system.
(Emphasis added.) In re Jones, 9th Dist. Lorain No. 96CA006393, 1996 WL 724757, *3 (Dec. 4, 1996) (holding that
{¶ 42} The duty owed by the juvenile courts to protect children under the doctrine of parens patriae would be undermined if a party seeking emergency custody of a child or alleging that the child is abused, neglected, or dependent could unilaterally dismiss a child-custody proceeding without leave of court. And we have rejected constructions of the Juvenile Rules that would “undermine the juvenile court system’s ability to protect children” by fostering attempts to avoid oversight of parents who are alleged to have abused or neglected their children. In re Z.R. at ¶ 28 (“[i]f we were to hold that dismissal is required for venue defects in a dependency complaint, we might foster attempts by some parents to avoid
{¶ 43} It is for this reason that proceedings in juvenile court may be dismissed on motion and with approval of the court,
{¶ 44} Here, Osley’s attempt to voluntarily dismiss the underlying child-custody proceeding was a nullity. And further, at the time Osley commenced the original proceeding, Ohio was not E.J.H.’s home state because the child had not resided in this state for six months. Moreover, Arizona courts had, and continue to have, exclusive jurisdiction because (1) Arizona was the home state of E.J.H. within the six months prior to Osley’s commencement of the original child-custody proceeding, (2) C.H., E.J.H.’s adoptive mother, continued to live in Arizona even though E.J.H. had been absent from that state, and (3) it appears that no Arizona court has declined to exercise jurisdiction on the basis that Ohio is the more appropriate forum.
{¶ 45} Therefore, because Ohio was not E.J.H.’s home state at the commencement of the child-custody proceeding, Ohio does not have jurisdictional priority under the UCCJEA or
The Juvenile Court Is Not Making the Initial Child-Custody Determination
{¶ 46} Even if Ohio were E.J.H.’s home state,
a judgment, decree, or other order of a court that provides for legal custody, physical custody, parenting time, or visitation with respect to a child. “Child custody determination” includes an order that
allocates parental rights and responsibilities. “Child custody determination” includes permanent, temporary, initial, and modification orders. “Child custody determination” does not include an order or the portion of an order relating to child support or other monetary obligations of an individual.
a proceeding in which legal custody, physical custody, parenting time, or visitation with respect to a child is an issue. “Child custody proceeding” may include a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, parentage, termination of parental rights, or protection from domestic violence. “Child custody proceeding” does not include a proceeding regarding juvenile delinquency, contractual emancipation, or enforcement pursuant to sections 3127.31 to 3127.47 of the Revised Code.
{¶ 47} In this case, the juvenile court cannot make the initial child-custody determination in the child-custody proceeding regarding E.J.H. The initial determination was made in Arizona in April 2017 when the Maricopa County Superior Court issued the decree granting C.H.’s request to adopt E.J.H. Under Arizona law, the adoption decree terminated the parental rights of A.H. and Osley,
{¶ 49} Accordingly, a child-custody determination includes an adoption decree, and a child-custody proceeding includes an adoption proceeding as those terms are defined by the UCCJEA and
{¶ 50} Judge O’Malley, however, contends that the granting of an adoption decree is not a child-custody determination because the UCCJEA, as adopted by Ohio and Arizona, “do[es] not govern adoption proceedings.”
{¶ 51} For these reasons, the juvenile court does not have jurisdiction to make an initial child-custody determination regarding E.J.H. That initial determination has already been made by the Arizona court system.
{¶ 52}
Except as otherwise provided in section 3127.18 of the Revised Code, a court of this state may not modify a child custody determination made by a court of another state unless the court of this state has jurisdiction to make an initial determination under division (A)(1) or (2) of section 3127.15 of the Revised Code and one of the following applies:
(A) The court of the other state determines that it no longer has exclusive, continuing jurisdiction under section 3127.16 of the Revised Code or a similar statute of the other state or that a court of this state would be a more convenient forum under section 3127.21 of the Revised Code or a similar statute of the other state.
(B) The court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.
{¶ 53} As explained above, Ohio courts do not have jurisdiction pursuant to
{¶ 54} Therefore, the juvenile court lacked and continues to lack jurisdiction to modify the adoption decree issued by the Maricopa County Superior Court.
Temporary Emergency Jurisdiction
{¶ 55}
A court of this state has temporary emergency jurisdiction if a child is present in this state and either of the following applies:
(1) The child has been abandoned.
(2) It is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
{¶ 56} In drafting the UCCJEA, the National Conference of Commissioners on Uniform State Laws described the type of temporary emergency jurisdiction provided in
{¶ 57} Osley’s motion for temporary emergency custody alleged that E.J.H. had “been the victim of continual physical and emotional abuse perpretrated [sic] by his maternal grandmother, his mother and his mother’s boyfriend,” but he also asserted that the child had been voluntarily and permanently relinquished to him. Osley therefore did not allege that the child was in imminent danger of enduring any mistreatment or abuse—the alleged abusers were in Arizona—and he sought an order of temporary emergency custody simply to enroll E.J.H. in school. Notably, the magistrate never found that E.J.H. was in fact subjected to or threatened with mistreatment or abuse. After the first temporary emergency-custody hearing, the magistrate’s order merely expressed “concerns about Mother’s substance abuse problems” but did not otherwise address the allegations of abuse. It is manifest that the only purported “emergency” that was substantiated with any evidence was Osley’s need to enroll E.J.H. in school. However, a grant of temporary emergency jurisdiction must be based on an emergency predicated on the abandonment, mistreatment, or abuse of a child, not the need to enroll a child in school.
{¶ 58} Moreover, the temporary emergency order did not specify a date certain when Osley’s temporary emergency custody of E.J.H. would expire. And even when presented with proof that E.J.H. was the subject of an adoption decree and that E.J.H. had previously resided in Arizona with his adoptive mother, the magistrate still failed to comply with
{¶ 59} The magistrate noted the testimony elicited at that hearing that “allegations of abuse were made” and that Osley had “concerns” with E.J.H.’s schooling and whether E.J.H.’s basic needs were being met in Arizona. Osley also explained that while living in Ohio, E.J.H. was doing better in school and had “proper clothing and hygiene products.” The only evidence of abuse by C.H. was the “verbal abuse” aimed at E.J.H.’s birth mother, and there was no proof of current drug abuse in C.H.’s home. C.H. also presented evidence in the form of a notice that the Arizona Department of Child Safety had investigated Osley’s allegations of abuse and found them to be unsubstantiated, and that she had obtained a protection order against A.H.’s boyfriend, who had allegedly abused E.J.H.
{¶ 60} At the conclusion of the hearing, the magistrate once again did not find that E.J.H. had been subjected to mistreatment or abuse; rather, she stated that the court “can exercise jurisdiction over [E.J.H.’s] immediate well being [sic]” and that “based upon the testimony, [E.J.H.] should remain in his current school and in the Emergency Custody of [Osley].” The magistrate then set the matter for yet another pretrial.
{¶ 61} A court of this state does not have temporary emergency jurisdiction pursuant to
{¶ 62} Temporary emergency jurisdiction exists only in extraordinary circumstances—involving actual emergencies—to protect a child from ongoing or imminent mistreatment or abuse. It is manifest that even if Osley had properly invoked the juvenile court’s temporary emergency jurisdiction in the first instance, that jurisdiction and the court’s continued authority to act has lapsed by the passage of time and the failure of proof that E.J.H. is in any danger of mistreatment or abuse.
{¶ 63} The juvenile court therefore lacks temporary emergency jurisdiction over E.J.H.
A Writ of Prohibition Should Issue
{¶ 64} For the above reasons, Judge O’Malley and her designated magistrate patently and unambiguously lack jurisdiction over the underlying custody proceedings of E.J.H. But even if the juvenile court had basic statutory jurisdiction, C.H. has no adequate remedy by way of appeal, see V.K.B., 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, at ¶ 27, because the juvenile court (1) has removed the child from an adoptive parent who has been awarded permanent custody, (2) gave custody to a person whose parental rights to the child have been terminated, (3) is not complying with the requirements in
Conclusion
{¶ 65} Temporary emergency jurisdiction is not intended to permit a legal stranger to gain a legal right to custody greater than that of a parent based on the barest allegation of abuse. Yet that is what has occurred in this case and what continues to this day. Therefore, a writ of prohibition should be issued forthwith and the juvenile court should be ordered to return E.J.H. to the custody of C.H., his adoptive mother.
{¶ 66} Because this court denies the writ, I dissent.
STEWART, J., concurs in the foregoing opinion.
Rosenthal Thurman, L.L.C., and Katherine A. Friedell, for relator.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for respondents.