In re B.J.
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 11, 2009
Jeffrey A. Burd, Stephen R. King, and King & Koligian, LLC, for Appellants Rick and Cynthia Hutchinson,
Ross M. Evans and Katz, Greenberger, and Norton, LLP, for Appellees Damon and Jamie James.
Note: We have removed this case from the accelerated calendar.
{¶1} This case involving the change of custody of a child to his parents from his grandparents is on appeal in this court for the second time. We reverse the juvenile court’s judgment awarding custody to the parents because it is contrary to law. But we remand the cause for the juvenile court’s consideration of the parents’ supplemental motion to modify the prior custody order.
{¶2} The parents, appellees Damon and Jamie James, have sought to regain custody of their son, B.J., born in 1999. Almost ten years ago, B.J. was adjudicated abused and dependent due to the conduct of his parents. Prior to the adjudication, by agreement of the parties, the Hamilton County Department of Human Services had been awarded temporary custody, and B.J. had been placed with his maternal grandparents, appellants Rick and Cynthia Hutchinson. After the adjudication, the juvenile court committed him to the temporary custody of the department with continued placement with his grandparents. The department further developed a case plan for the parents. In May 2001, at the annual review of the case plan, the department asked the juvenile court to award legal custody of B.J. to his grandparents. The parents stipulated to that request, and the court found that awarding legal custody to the grandparents would be in the best interest of B.J. The court also allowed the parents supervised visitation with B.J.
{¶3} In February 2004, the parents moved to obtain custody of B.J.. Several months later, the juvenile court modified the prior custody order by awarding custody of B.J. to his parents. The court’s decision rested on a finding that the Jameses were suitable parents and that it was in B.J.’s best interest to be with his parents; but the court did not determine that the best-interest inquiry was warranted by any change that had occurred in the circumstances of B.J. or his grandparents.
{¶5} This court affirmed the judgment of the juvenile court transferring custody of B.J. from his grandparents to his parents.1 In doing so, we held that “when a nonparent has nonpermanent custody of a child, the requirement in
{¶6} The Ohio Supreme Court accepted a discretionary appeal “to review the constitutionality of
{¶8} Importantly, the supreme court expressly determined that the record did not establish a change in B.J.’s circumstances.7 The court anticipated that in the future, “by evidencing a sufficient change in the child’s circumstances to the court,” the parents might be able to regain B.J.’s custody.8
{¶9} The supreme court acknowledged that applying
{¶10} Ultimately, the supreme court reversed our judgment. The court, however, did not enter judgment for the grandparents; rather, the court “remanded the matter for further consideration in accordance with [its] opinion.”
{¶11} After the remand, the case was assigned to a new judge. B.J. remained living with his parents and continued to have court-ordered companionship time with his
{¶12} As a precaution, the Jameses filed a supplemental motion to modify the prior custody order, and they asked the court to receive new evidence if the court could not award custody of B.J. to them based upon the prior record.
{¶13} The juvenile court informed the parties that it would make a determination based on the prior record and that it would not accept new evidence. The court then found that the prior record had demonstrated a change in the circumstances of B.J., the Jameses, and the Hutchinsons. The court ultimately modified the custody order to award custody of B.J. to the Jameses.
{¶14} In this appeal, the Hutchinsons argue that the juvenile court’s decision after the remand was contrary to law even though the court found a change in circumstances because (1) the finding with regard to the parents was irrelevant; (2) the finding with regard to them, as custodians, was not supported by sufficient evidence; and (3) the finding with regard to B.J. was contrary to the law-of-the-case doctrine
{¶15} We note that much of the prior record in this case that the juvenile court reviewed in 2008 to make the “change in circumstances” determination is missing—“the pleadings” and “all prior transcripts.” But our resolution of the claimed error rests on issues of law, and the defect in the record does not impede our review of these issues.
{¶17} Under this statute, the Jameses, who had only residual parenting rights when they moved to modify the child-custody order in 2004, were not appropriate individuals for the change-in-circumstances inquiry that could have triggered a best interest inquiry and a modification of the prior decree allocating parental rights and responsibilities.12 The statute is designed “to spare children from a constant tug of war” by providing “some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.”13
{¶18} Further, a change in the circumstances of the parents could not have triggered a best-interest inquiry under
{¶19} Thus, the commendable progress of the Jameses cited by the juvenile court was not pertinent to a “change in circumstances” determination. The supreme court’s decision confirms this.14
{¶20} Next we review whether the juvenile court’s determination that a change in the circumstances of the grandparents could trigger the best-interest inquiry. The
{¶21}
{¶22} The grandparents argue, persuasively, that their resistance of the reunification plan could not have been viewed as a change in circumstances because, as pointed out by the Ohio Supreme Court, the transfer of legal custody that occurred when B.J. was adjudicated abused and dependent was intended to be “permanent in nature.”16 The grandparents should not have been required to aid the parents toward renunification when the goal of
{¶23} Thus, we conclude that the grandparents’ “refus[al] to do anything to help Jamie and Damon in their efforts to regain custody or increase visitation time” could not
{¶24} Finally, we address the juvenile court’s change-in-circumstances determination with regard to B.J., “the child.” B.J. was an appropriate individual for a change-in-circumstances determination under both statutes.17 But the grandparents argue that the law-of-the-case doctrine prevented a determination that a change had occurred in the circumstances of B.J. We agree.
{¶25} The law-of-the-case doctrine provides that the decision of an appellate court on a legal issue remains the law of that case for proceedings both before the trial court and during subsequent review.18 In this case, the Ohio Supreme Court held that the facts presented in the prior record failed to demonstrate a change in the circumstances of B.J. Based upon this same record, the juvenile court found that a change had occurred in B.J.’s circumstances. This finding was contrary to the law-of-the-case doctrine and was, therefore, legally erroneous.
{¶26} We conclude that the juvenile court erred by modifying the prior custody order because the record in this case does not evidence that a change in circumstances had occurred as required by statute. Accordingly, we reverse the juvenile court’s judgment and remand the cause for the juvenile court’s consideration of the parents’ supplemental motion to modify.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., SUNDERMANN and CUNNINGHAM, JJ.
Please Note:
The court has recorded its own entry on the date of the release of this decision.