In re D.B.E.
For Appellant
DAVID M. HUNTER 244 West Main Street Loudonville, Ohio 44842
For Appellees John and Virginia Plant
BLAIR A. BOWER 111 South Washington Street, Suite B Millersburg, Ohio 44654
Wise, J.
{¶1} Appellant Traсy Ellis appeals the decision of Holmes County Court of Common Pleas, Juvenile Division, which dismissed her complaint for legal custody of her son, D.B.E., in favor of Appellees John and Virginia Plant, the child‘s paternal uncle аnd aunt, who are presently the child‘s legal custodians. The relevant facts leading to this appeal аre as follows.
{¶2} On July 15, 2007, D.B.E.‘s father and then-custodian, Ira Plant, passed away. At that time, appellant, D.B.E.‘s mother, was in jаil due to a probation violation. On July 24, 2007, the Holmes County Department of Job and Family Services (“HCDJFS”) filed a cоmplaint regarding D.B.E.‘s status, alleging dependency.
{¶3} The trial court found D.B.E. to be a dependent child via a judgment еntry on August 20, 2007, following an adjudicatory hearing. The court further ordered temporary custody to be maintained with HCDJFS, with placement to Sandra Whitley, the child‘s grandmother. Home studies were ordered, and at the dispositional hearing on September 10, 2007, the case was maintained status quo.
{¶4} As the case progressed, Sandra Whitley, John Plаnt, and Charles Plant (paternal grandfather) each filed motions for custody of D.B.E. A custody evidentiary hearing was conducted on May 16 and 20, 2008. The court excused HCDJFS from participating at that time.
{¶5} On July 25, 2008, the trial court issued a judgment entry ordering that legal custody of D.B.E. was granted to John and Virginia Plant, effective August 11, 2008.
{¶7} On November 9, 2009, Appellant Tracy Ellis filed a complaint for custody in the Holmes County Juvenile Court. On March 26, 2010, Appellee Plant filed a motion to dismiss. On May 21, 2010, following an evidentiary hearing, the trial court granted the motion to dismiss, essentially finding that appellant had failed to demonstrate a change in circumstances to alter D.B.E.‘s custody.
{¶8} Appellant thereafter timely filed a notice of appeal. She herein raises the follоwing two Assignments of Error:
{¶9} “I. THE HOLMES COUNTY JUVENILE COURT ERRED WHEN IT GRANTED APPELLEE‘S MOTION TO DISMISS.
{¶10} “II. THE HOLMES COUNTY JUVENILE COURT APPLIED THE WRONG LAW IN GRANTING APPELLEE‘S MOTION TO DISMISS.”
I., II.
{¶11} In her First and Second Assignments of Error, appellant contends the trial court erred as a matter of law by applying the “change in circumstances” prerequisite to her motion to regain custody of D.B.E. from the child‘s aunt and uncle. We agree.
{¶12} We first note that
{¶13} Accordingly, “an award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities.” In re M.J.M., Cuyahoga App.No. 94130, 2010-Ohio-1674, ¶ 11, quoting In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 17. Our research indicates that at least one Ohio appellate court has determined, albeit in the context of post-decree proceedings, that where a motiоn to modify custody did not constitute an original custody determination, the trial court properly reviews a parent‘s request for a custody modification against a non-parent custodian under the “change of circumstances” standard contained in
{¶14} However, in Culp v. Burkhart, Tuscarawas App.No. 04AP010006, 2004-Ohio-4425, this Court specifically held that a change of circumstances is not a prerequisite for a parent to regain legal custody of a child in juvenile court when the original rеlinquishment of legal custody “was not based on [the] unsuitability of the parent.” Id. at ¶ 16. Culp originally involved a court-approved private agreement between the child‘s parents and the maternal grandmother as to child custоdy. Id. at ¶ 1. In the case sub judice, the custodial history commenced with a dependency complaint concerning D.B.E. filed by the Holmes County Department of Job and Family Services, which developed into a disposition of legal custody, pursuant to
{¶15} Accordingly, we hold the trial court erred in concluding that a chаnge of circumstances demonstration was required for appellant to pursue her complaint fоr custody of D.B.E. under the facts and circumstances of this case.
{¶16} Appellant‘s First and Second Assignments of Error are therefore sustained.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/12/21
For the reаsons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Juvenile Division, Holmes County, Ohio, is reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to appellees.
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JUDGES