2004 Ohio 2645 | Ohio Ct. App. | 2004
{¶ 2} Brittiney Trowbridge was born on September 7, 1991, to Darlene Robar and Trowbridge. Daniel Trowbridge, Brittiney's half-brother, was born on August 21, 1992, to Darlene Robar and Jimmy Stafford.
{¶ 3} On April 10, 2000, Franklin County Children's Services ("FCCS") removed Brittiney and Daniel from their mother's home in response to allegations that Ms. Robar and Mrs. Robar's boyfriend sexually molested Brittiney. Upon learning that FCCS had removed the children from their mother's home, appellant, who is Mrs. Robar's uncle, moved for temporary custody of the children.
{¶ 4} After a hearing, the magistrate found that both Brittiney and Daniel were dependant children pursuant to R.C.
{¶ 5} Over a year after appellant was granted temporary custody of the children, he moved for legal custody of Brittiney and Daniel. At a dispositional hearing on the motion, Trowbridge testified that he also wanted custody of the children.
{¶ 6} On January 13, 2003, the magistrate issued two identical decisions, one pertaining to Brittiney and one to Daniel, in which the magistrate denied appellant's motion and awarded Trowbridge legal custody of the children. In the decisions, which the juvenile court adopted, the magistrate stated:
Although the applicable standard in all juvenile custody proceedings is the best interests of the children, the Ohio Courts have consistently determined that in custody disputes between a parent and a non-parent, the Court may not award custody to a non-parent if there is a suitable parent. * * *
* * * Mr. Robar has not shown by a preponderance of the evidence that Mr. Trowbridge is an unsuitable parent. Given the close bond between Brittiney, Mr. Trowbridge's biological daughter, and Daniel, Mr. Trowbridge's step child, the Magistrate finds it is in the best interest of Daniel and Brittiney for them to remain together.
{¶ 7} Both Donald and Darlene Robar objected to the magistrate's decisions, but the juvenile court upheld the magistrate's rulings. In so doing, the court reiterated the magistrate's finding that "no evidence was presented to support that the great uncle, Donald Robar, would be suited to care for the minor child, Brittiney Trowbridge, as opposed to her biological father, Clyde Trowbridge." Because the court concluded that the children should remain together, it granted Trowbridge legal custody of both children. Appellant then appealed to this court.
{¶ 8} On appeal, appellant assigns the following errors:
[1.] The trial court erroneously applied In re Perales in determining rival custody motions by a parent and nonparent.
[2.] The trial court's award of custody to appellee was not supported by the evidence.
{¶ 9} By his first assignment of error, appellant argues that the juvenile court applied the wrong standard in determining who should receive custody of Brittiney and Daniel. We agree.
{¶ 10} Once a child is adjudicated abused, neglected, or dependant, a juvenile court may award legal custody of the child to any parent or person who files a motion requesting legal custody. R.C.
{¶ 11} However, in awarding custody of Brittiney and Daniel to Trowbridge, the juvenile court followed In re Perales
(1977),
In an R.C.
Id. at syllabus. Thus, when a juvenile court has jurisdiction over a custody dispute pursuant to R.C.
{¶ 12} Like Perales, the case at bar involves, in part, a custody dispute between a parent (Trowbridge) and a non-parent (appellant). However, unlike Perales, the case at bar arose from a complaint filed by FCCS alleging that Brittiney and Daniel were dependent children, not from a private custody dispute. Although the juvenile court has jurisdiction over both private custody cases and cases initiated by children's services agencies, its jurisdiction over the former is based on R.C.
{¶ 13} In concluding that Perales does not apply here, we are mindful that the right of a parent to raise his or her child is a "natural right subject to the protection of due process."In re Perales, supra, at 96, fn 9, citing Meyer v. Nebraska
(1923),
{¶ 14} Under R.C.
{¶ 15} Additionally, we note that several other appellate courts have distinguished Perales as we have here and have held that a juvenile court need not make a separate finding of parental unsuitability once a child is adjudicated an abused, neglected, or dependent child. In re T.W., Summit App. No. 21594, 2003-Ohio-7185, at ¶ 12-16; In re Osberry, Allen App. No. 1-03-26, 2003-Ohio-5462, at ¶ 8-9; In re Reeher, Belmont App. No. 02-BE-38, 2003-Ohio-3470, at ¶ 7-41; In re C.F.,
Cuyahoga App. No. 82107, 2003-Ohio-3260, at ¶ 14-16; In reD.R.,
{¶ 16} Because a parent's fundamental right to raise his or her child has already been compromised by a dependency determination, a court must apply the best interest of the child standard without placing the additional burden on the nonparent to prove parental unsuitability. Under these circumstances, there is a level playing field and a court must focus solely on what is in the best interest of the child. Here, the juvenile court erroneously required appellant to prove by a preponderance of the evidence that Trowbridge was an unsuitable parent. As neither the magistrate nor the court engaged in a best interest of the child analysis to determine with whom the children should be placed, we sustain appellant's first assignment of error.
{¶ 17} Based upon our disposition of appellant's first assignment of error, appellant's second assignment of error is moot.
{¶ 18} Finally, we note that the juvenile court may not have had the authority to award custody of Daniel to Trowbridge under these circumstances. As we stated above, a juvenile court may award legal custody of a child "to either parent or any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child." R.C.
{¶ 19} For the foregoing reasons, appellant's first assignment of error is sustained, and his second assignment of error is moot. The judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, are reversed, and these causes are remanded to that court in accordance with law consistent with this opinion.
Judgments reversed and causes remanded.
Bryant and Brown, JJ., concur.