In re A.G.
DECISION AND JUDGMENT
Decided: May 1, 2020
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Judith A. Myers, for appellant.
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MAYLE, J.
{¶ 1} Plaintiff-appellant, P.G., appeals the August 28, 2019 judgment of the Lucas County Court of Common Pleas, Juvenile Division, dismissing her third-party complaint for visitation and companionship, or in the alternative, custody of minor child. For the following reasons, we affirm, in part, and reverse, in part.
I. Background
{¶ 2} P.G. is the biological mother of A.G. On April 9, 2014, the Lucas County Court of Common Pleas, Juvenile Division, entered a judgment terminating P.G.‘s parental rights and awarding permanent custody to Lucas County Children‘s Services (“LCCS“). In a decision and judgment dated November 3, 2014, we affirmed the trial court judgment. In re A.G., 6th Dist. Lucas No. L-14-1079 (Nov. 3, 2014).
{¶ 3} On April 2, 2019, P.G. filed a third-party complaint for visitation and companionship, or in the alternative, custody of the minor child. According to P.G.‘s complaint, A.G. is currently in the legal custody of C.A., Jr. (“C.A.“), P.G.‘s ex-husband. C.A. is not A.G.‘s biological father, but C.A. and P.G. have two other minor children together, of whom C.A. is the residential
{¶ 4} P.G. claims that C.A. has not provided A.G. with a stable living environment, has had multiple evictions, has not maintained sobriety, and has been incarcerated on numerous occasions since becoming A.G.‘s legal custodian, and she insists that C.A.‘s behavior has negatively impacted A.G. and caused her emotional distress. P.G. maintains that C.A. has represented that he is willing to allow P.G. to have contact with A.G., she has no mental illnesses that would prevent her from caring for A.G., and it is in A.G.‘s best interest that they have a relationship.
{¶ 5} P.G. named only C.A. as a defendant in her original complaint. On June 20, 2019, she filed an amended complaint adding LCCS as a defendant. In her amended complaint, she alleges that LCCS has not accomplished the goals of the case plan approved for the child and has neglected its responsibilities to A.G. P.G. also alleges that C.A. has neglected A.G. and failed to provide for her basic needs, and that it is not in A.G.‘s best interest to observe her half-siblings maintain a relationship with their mother while A.G. is not permitted the same privilege. P.G.‘s amended complaint omits any request that she be awarded custody of A.G., however, she again requests visitation and companionship.
{¶ 6} C.A., acting pro se, moved to dismiss P.G.‘s complaint. He argued that under
{¶ 7} P.G. opposed C.A.‘s motion. She clarified that her complaint and amended complaint allege dependency and neglect under
standing to “any person.” She emphasized that both
{¶ 8} The magistrate granted C.A.‘s motion to dismiss. She agreed with C.A. that because P.G.‘s parental rights were terminated, she lacked standing to seek either custody of or visitation with A.G. Like C.A., the magistrate relied primarily on the Ohio Supreme Court‘s decision in In re McBride. She also relied on In re T.C., 9th Dist. Summit No. 23851, 2007-Ohio-6787, where the court reached the same conclusion under procedurally different circumstances. The trial court affirmed and adopted the magistrate‘s decision on August 6, 2019.
{¶ 10} In a judgment journalized on August 28, 2019, the trial court found P.G.‘s objections not well-taken and affirmed the August 6, 2019 dismissal of P.G.‘s complaint. P.G. appealed and assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN INDEPENDENT REVIEW OF THE MAGISTRATE‘S DECISION PURSUANT TO JUV.R. 40(D)4)(d) [sic][.]
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED STANDING TO APPELLANT WHICH IS STATORILY [sic] CONFERRED[.]
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT VIOLATED APPELLANT‘S DUE PROCESS RIGHTS AS GUARANTEED BY THE UNITED STATES CONSTITUTION WHEN IT DENIED HER STANDING TO PURSUE HER CLAIMS RAISED PURSUANT TO OHIO REVISED CODE §2151.27(A)(1)[.]
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRONEOUSLY RELIED UPON CASE LAW AND STATUTES THAT ARE NOT RELEVANT TO THE PROCEEDING INITIATED BY APPEALANT [sic][.]
II. Law and Analysis
{¶ 11} P.G. argues in her first assignment of error that the trial court failed to independently review the magistrate‘s decision as required under
{¶ 12} Neither C.A. nor LCCS filed an appellate brief.
A. Standing
{¶ 13} P.G. argues that
{¶ 14}
allegation that the child * * * is an * * * abused, neglected, or dependent child is based.” If the complainant
{¶ 15}
1. Under Ohio law, a parent who has lost permanent custody of a child may not petition for custody of that child as a non-parent.
{¶ 16} No Ohio court has specifically considered the issue of whether a person whose parental rights have been terminated may file a complaint under
¶ 1, the Ohio Supreme Court accepted a discretionary appeal “to determine whether a natural parent who lost permanent custody of a child has standing to file a petition for custody of that child as a nonparent.”
{¶ 17} In In re McBride, the mother‘s parental rights had been terminated in April of 1997, and permanent custody was awarded to Hamilton County Job and Family Services (“HCJFS“). In 2003, after learning that the child had still not been adopted, the mother filed a petition as a nonparent for custody of the child. HCJFS moved to dismiss the petition, arguing that the mother “lacked standing to assert a claim for custody, that her petition [was] barred by res judicata, and that she had filed a facially deficient petition.” Id. at ¶ 3. The magistrate granted the motion to dismiss, and the mother objected. The juvenile court set aside the magistrate‘s decision, allowed the mother to present her petition as a nonparent, and certified the matter to the appellate court for a ruling on the interlocutory order.
{¶ 18} The appellate court affirmed the juvenile court‘s judgment, concluding that the mother was not legally barred from seeking custody of the child. In doing so, it relied on
{¶ 19} The Ohio Supreme Court accepted HCJFS‘s discretionary appeal. HCJFS and the guardian ad litem argued that the appellate court incorrectly concluded that there existed no statute that addressed the mother‘s standing to file a petition for custody. They maintained that
{¶ 20} The court explained that when HCJFS was granted permanent custody of the child, the mother was divested “of all parental rights, privileges, and obligations, including all residual rights and obligations,” including “the privilege of reasonable visitation, consent to adoption, the privilege to determine the child‘s religious affiliation, and the responsibility for support.”
{¶ 21} The court emphasized that the mother‘s petition for custody had been filed with the same case number used in the amended complaint of abuse, neglect, and dependency that resulted in her parental rights being terminated. Accordingly, after the permanent custody order was entered,
{¶ 22} The court further recognized that in addition to
{¶ 23} The Ohio Supreme Court acknowledged that
{¶ 24} In re McBride involved a petition by a parent in an existing dependency case. In the second case relied upon by the magistrate here, In re T.C., 9th Dist. Summit No. 23851, 2007-Ohio-6787, the parent attempted to seek custody in a newly-filed dependency case.
{¶ 25} In In re T.C., the father‘s parental rights were terminated in 2002 and the child was placed in the permanent custody of CSB. While the child waited for an adoptive placement, she resided with a couple. In 2005, the couple expressed willingness to assume legal custody of the child, so CSB moved for a change of disposition. The trial court changed the disposition
{¶ 26} The next year, problems developed between the child and the couple and the couple informed CSB that they no longer wanted the child in their home. Instead of moving for another change of disposition in the original dependency case, CSB filed a new complaint. This triggered service on the biological parents. The father—who had not participated in the original proceedings and did not appeal the judgment terminating his parental rights—opposed CSB‘s motion.
{¶ 27} CSB moved to exclude the father as a party. It argued that the father‘s parental rights had been terminated in a prior case and the request for a new disposition did not resurrect those rights. The trial court agreed and granted CSB‘s motion to exclude him as a party. It placed the child back in the permanent custody of CSB.
{¶ 28} The father appealed. He argued that the trial court erred when it determined that he lacked standing to proceed as a party. He contended that his residual
parental rights were resurrected when the trial court changed its prior disposition of permanent custody to CSB to legal custody to the couple. Like the trial court, the appellate court disagreed.
{¶ 29} The appellate court explained that all parental rights are terminated and the parent ceases to be a party to the action after the child is placed in the permanent custody of the agency under
{¶ 30} CSB conceded at oral argument that it made a procedural error when it filed a new dependency and neglect case instead of simply filing a motion for a change of disposition in the prior case. If it had filed a motion in the prior case, the father would not have been served. The court concluded that this error by CSB did not serve to resurrect the father‘s rights, which had been judicially terminated years ago.
{¶ 31} P.G. argues that In re McBride and In re T.C. are inapplicable here because she filed her complaint under
2. A complaint filed under R.C. 2151.27(A)(1) differs from a petition for custody.
{¶ 32} The primary objective of an action brought under
{¶ 33} Consistent with the purpose of
complaint. In re Matter of J.D.B. at ¶ 23; Ives v. Ives, 9th Dist. Lorain No. 02CA008176, 2003-Ohio-3505, ¶ 7 (“Pursuant to
{¶ 34} The Ohio Supreme Court harmonized
Any person may file a complaint to have determined the custody of a child not a ward of another court of this state, and any person entitled to the custody of a child and unlawfully deprived of such custody may file a complaint requesting a writ of habeas corpus. Complaints concerning custody shall be filed in the county where the child is found or was last known to be. (Emphasis added.)
P.G. claims that her complaint is one alleging dependency and neglect under paragraph one of
Any person having knowledge of a child who appears to be a * * * neglected, dependent, or abused may file a complaint with respect to the child in the juvenile court of the county in which the child has a residence or legal settlement, or in which the * * * neglect, dependency, or abuse occurred. (Emphasis added.)
{¶ 35} If, in fact, P.G.‘s complaint was one alleging dependency and neglect, we agree that In re McBride, 110 Ohio St.3d 19, 2006-Ohio-3454, 850 N.E.2d 43, and In re T.C., 9th Dist. Summit No. 23851, 2007-Ohio-6787, would be inapplicable. We find that a parent of a child whose parental rights have been terminated may have standing to file a complaint for neglect and dependency with respect to that child under
{¶ 36} We must, therefore, determine whether the action initiated by P.G. was one for dependency or neglect.
3. P.G.‘s amended complaint alleged dependency or neglect.
{¶ 37} P.G. filed an original complaint and an amended complaint in this action. Her original complaint alleged particular facts demonstrating concern about the care A.G. is receiving, but it failed to allege that A.G. is dependent or neglected as required by
{¶ 38} But P.G. filed an amended complaint on June 20, 2019. Under
{¶ 39} The magistrate‘s decision dismissed P.G.‘s original complaint—“[C.A.‘s] motion to dismiss petitioner‘s complaint filed 4/2/19, is found well taken and granted.” Significantly, the magistrate failed to acknowledge P.G.‘s amended complaint, and did not address the critical distinction that P.G. raised between a complaint for dependency or neglect under
{¶ 40} Unlike the magistrate, the trial court specifically acknowledged that P.G. had filed an amended complaint in which she “requested visitation rights and a Court order requiring Lucas County Children Services (LCCS) to uphold its duties [to A.G. as a neglected child.]” The trial court, however, simply affirmed the magistrate‘s decision—finding that P.G.‘s objections did not identify any mistake of fact, error of law, or abuse of discretion—even though the magistrate only determined that P.G. lacked standing to seek custody or visitation. That is, the magistrate did not address P.G.‘s new allegations that A.G. is a neglected child, or P.G.‘s corresponding request for LCCS to “uphold its duties” to A.G. If P.G. had filed only her original complaint, we would agree that she lacked standing because as previously discussed, the original complaint was, in essence, a petition for custody and not one for dependency or neglect. The amended complaint, however, does not include a request for custody. And although the amended complaint continues to seek visitation and companionship—residual parental rights that were terminated when permanent custody was awarded to LCCS—it also includes new allegations that A.G. is a neglected child. The amended complaint may therefore be interpreted, at least in
{¶ 41} Accordingly, to the extent that P.G.‘s amended complaint seeks visitation and companionship, we find that the trial court correctly determined that P.G. lacked standing to request such relief. See
complaint for dependency or neglect—we find that the trial court erred by dismissing the amended complaint for lack of standing. “The filing of a complaint alleging the neglect or dependency of a child is primarily filed on behalf of the child, not any of the interested parties.” In re Matter of J.D.B., 2019-Ohio-408, 130 N.E.3d 961, at ¶ 24. In that regard, even though the trial court may ultimately refuse to recognize P.G. as a party to the proceedings, P.G. nonetheless had standing to initiate such proceedings through the filing of the amended complaint alleging dependency or neglect. Id. (explaining that
{¶ 42} We, therefore, find her second and fourth assignments of error well-taken, in part. We affirm the trial court‘s judgment to the limited extent that the trial court correctly concluded that P.G. lacks standing to seek visitation and companionship with the minor child. We otherwise reverse the trial court‘s dismissal of the amended complaint, and remand this matter to the trial court so that it may consider the complaint for dependency or neglect under
B. Failure to Conduct Independent Review
{¶ 43} In her first assignment of error, P.G. argues that the trial court failed to conduct an independent review of the magistrate‘s decision as required under
she claims that the trial court‘s failure to address her arguments under
III. Conclusion
{¶ 44} The trial court correctly determined that P.G. lacked standing to seek relief in the form of visitation and companionship because such residual parental rights were terminated when permanent custody was awarded to LCCS. But, given that
{¶ 45} We therefore find P.G.‘s second and fourth assignments of error well taken, in part. We deny her first and third assignments of error as moot.
{¶ 46} We affirm the August 28, 2019 judgment of the Lucas County Court of Common Pleas, Juvenile Division, to the limited extent that it correctly determined that P.G. lacks standing to seek visitation and companionship because her parental
and remand this matter to the juvenile court so that it may consider the complaint for dependency and neglect under
{¶ 47} C.A. and LCCS are ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed, in part, reversed, in part and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE
JUDGE
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.supremecourt.ohio.gov/ROD/docs/.