In re Poling
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Courts -- Juvenile court has jurisdiction to determine custody of child alleged to be abused, neglected or dependent, when --
- Pursuant to
R.C. 2151.23(A) , the juvenile court has jurisdiction to determine the custody of a child alleged to be abused, neglected, or dependent, when that child is not the ward of any court in this state. This jurisdiction includes children subject to a divorce decree granting custody pursuant toR.C. 3109.04 .1 - When a juvenile court makes a custody determination under
R.C. 2151.23 and2151.353 , it must do so in accordance withR.C. 3109.04 . (R.C. 2151.23[F][1] , construed and applied.)
Charles Poling, Sr., appellant, and Connie Poling, appellee, were married in 1982. Two children were born of the marriage: Charles, Jr., on September 6, 1982, and Mary, on November 29, 1983. In 1987, Charles, Sr. abandoned his wife and two children to live with another woman in Arizona, and then later in Florida. During this time, Connie provided for the care and support of the children. Connie and Charles, Sr. were eventually divorced, with custody being granted to her pursuant to former
On September 21, 1989 Franklin County Children Services (“F.C.C.S.“) filed a neglect and dependency action in the Franklin County Juvenile Court, alleging lack of proper parental care for and supervision of Mary and Charles, Jr. According to F.C.C.S., the custodial parent left the children unsupervised at various times. Apparently, school security
While the action in neglect and dependency was pending, F.C.C.S. and the Columbus police investigated charges of sexual abuse of Mary and possibly Charles, Jr., allegedly involving Connie‘s neighbor and friend. The neighbor was arrested and convicted of criminal charges; he is now deceased. Evidence in the record suggests that Connie was not aware of any sexual abuse of her children, and there was never a factual finding to the contrary. The prosecution dismissed the neglect count and an uncontested hearing on the dependency action was held before a referee on December 11, 1989. The referee recommended that the court find by clear and convincing evidence that both Mary and Charles, Jr. were “dependent minor children” as defined in
In January 1990, Charles, Sr. filed a motion for a reevaluation of custody, and Connie likewise filed a motion for custody. Both motions were denied by the juvenile court. However, on June 6, 1990, F.C.C.S. filed a motion requesting the juvenile court to exercise its continuing jurisdiction to terminate the temporary custody order and grant custody of the children to Charles Poling, Sr. After a three-day hearing, the referee, in September 1990, recommended that custody be awarded to Charles, Sr. Connie filed objections to the report and recommendation of the referee. The objections were overruled and the juvenile court adopted the recommendation that legal custody be awarded to Charles, Sr. The juvenile court sustained an objection as to the issue of visitation and granted Connie visitation every other weekend and one month in the summer.
Upon appeal, the court of appeals reversed, holding that although the juvenile court had jurisdiction to terminate the temporary custody of F.C.C.S., under the facts of this case the juvenile court was not within its jurisdiction to enact a change of custody and grant legal custody to Charles, Sr. The appellate court reasoned that since the parties were once married and Connie had been granted legal custody pursuant to former
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Raymond L. Eichenberger, for appellant.
Eric J. Hoffman, for appellee.
James Kura, County Public Defender, and Paul Skendellas, guardian ad litem, for Charles, Jr. and Mary Poling.
Alice Robie Resnick, J. The issue before this court is whether a juvenile court has jurisdiction to consider the question of custody of dependent children, where custody has previously been determined and granted under a divorce decree pursuant to
Our analysis begins with
“(A) The juvenile court has exclusive original jurisdiction under the Revised Code:
“(1) Concerning any child who on or about the date specified in the complaint is alleged to be a[n] * * * abused, neglected, or dependent child;
“(2) To determine the custody of any child not a ward of another court of this state[.]” (Emphasis added.)
According to the plain language of
In this context,
Generally, a “ward” is “[a] person, especially a child or incompetent, placed by the court under the care and supervision of a guardian or conservator.” “Wards of the court” are “[i]nfants and persons of unsound mind placed by the court under the care of a guardian.” Black‘s Law Dictionary (6 Ed. 1990) 1583-1584. A ward is commonly associated with a guardianship, which is “* * * established because of the ward‘s inability to legally act on his or her own behalf * * *.” Id. at 707, defining “guardianship.” When a court in a divorce case grants custody of a child, the court is not traditionally placing itself in the position of guardian of that child. Rather, in a broad sense the court is making a judicial determination as to whom the child‘s custodian is to be, whether it be a parent or otherwise. Nor does the court consider the child a “ward” of that court, even though the court retains jurisdiction to modify custody and support. Hence, we conclude that the phrase any child not a “ward of another court” in
Based on the above, a juvenile court has jurisdiction under
While clarifying the jurisdiction of the juvenile court under
Therefore, a court which renders a custody decision in a divorce case has continuing jurisdiction to modify that decision. However, the juvenile court has jurisdiction to make custody awards under certain circumstances. Hence, for the purposes of deciding custody where there has been a prior divorce decree, these courts can accurately be said to have concurrent jurisdiction. In other words, the juvenile court may entertain and determine custody of children properly subject to its jurisdiction, even though there has been a prior divorce decree granting custody of said children to a parent pursuant to
Both appellant and the guardian ad litem advance judicial economy arguments to buttress their assertion that the juvenile court has jurisdiction to decide the custody issue in this case. They contend the juvenile court is in a position to hear all the relevant evidence concerning the child‘s environment and needs, and that it is a waste of judicial time and resources to then require additional hearings in the original divorce court to determine custody of the children.
We agree. The issues and facts relating to the disposition or custody of these children will have been examined in the juvenile court. In deciding how to best address the needs and interests of the children, the juvenile court would have before it home investigations germane to the case, psychological assessments, special educational or treatment concerns, relevant testimony from the pertinent parties, and the recommendation of both the county children services agency and the guardian ad litem. To now hold that the juvenile court does not have jurisdiction would require the original divorce court to possibly rehear the entire case, at a considerable cost not only to the judicial system but more importantly to the parties involved. This is especially true with respect to children whose well-being mandates an effective, timely means of resolving their care and custody.
However, when a juvenile court seeks to exercise its concurrent jurisdiction in a situation such as before us, i.e., where there is an existing custody decree, it must do so in compliance with
We view this legislative scheme as a means of granting the juvenile court jurisdiction to make particularized determinations regarding the care and custody of children subject to its jurisdiction, while respecting the continuing jurisdiction of the domestic relations or common pleas court that makes a custody decision in a divorce case. Stated otherwise, when a domestic relations or common pleas court makes a custody decision ancillary to a divorce proceeding, that court must comply with the strictures contained in
In the present case Connie Poling was awarded custody of Charles, Jr. and Mary under the divorce decree. Former
“Except as provided in division (B)(2) of this section, the court shall not modify a prior custody decree unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, his custodian, or either joint custodian, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian or both of the joint custodians designated by the prior decree, unless one of the following applies:
“(a) The custodian or both joint custodians agree to a change in custody.
“(b) The child, with the consent of the custodian or of both joint custodians, has been integrated into the family of the person seeking custody.
“(c) The child‘s present environment endangers significantly his physical health or his mental, moral, or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.” (140 Ohio Laws, Part I, 1843.)
The juvenile court‘s judgment, as reflected in the referee‘s report and recommendation, contains no reference to former
“Connie Poling has substantially complied with the provisions of the case plan approved by the Court. She has been consistent in her visitation, she has maintained and improved in housekeeping and she has successfully completed parenting classes. Connie Poling exhibits good interaction with her children, is bonded with them, and is a concerned and loving parent. While mother has had psychiatric problems in the past, she regularly takes medication and is faithful in her counseling. Her mental health is not a current problem.
“* * *
“There are no current indications that either parent is incapable of providing care and protection of the children. As such there is no need for continued custody with Franklin County Children Services. Given the fact that mother‘s location is upsetting to the children, and as the children are doing well in the father‘s home, it is not in their best interests, at this time, for the mother to resume custody.* * *”
From the above, it appears that the referee granted custody to Charles, Sr. because Connie‘s trailer was in close proximity to the trailer owned by the perpetrator of sexual
Judgment reversed and cause remanded.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and H. Brown, JJ., concur.