In re G.H. , 2023 Ohio 295 ( 2023 )

[Cite as In re G.H., 2023-Ohio-295.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
In re G.H. Court of Appeals No. OT-22-009
S.H. Trial Court No. 2021-JUV-384
Appellant
v.
J.F. DECISION AND JUDGMENT
Appellee Decided: January 30, 2023
*****
Howard C. Whitcomb, III, for Appellant.
J.F., Pro se.
*****
OSOWIK, J.
{¶ 1} This is an appeal from the January 19, 2021 judgment of the Ottawa County
Court of Common Pleas, Juvenile Division, transferring jurisdiction to Boone County,
Kentucky. For the following reasons, this court reverses the judgment of the trial court
and remands the case back to the trial court for proceedings consistent with this opinion.
Facts and Procedural History
{¶ 2} The record reflects that this juvenile custody action was commenced on
August 23, 2021, when a complaint for custody of G.H., pursuant to R.C. 2151.27(D),
was filed by appellant, S.H., and emergency custody was awarded to appellant on the
same day. In his affidavit filed with his complaint, S.H. asserted that he was listed as
G.H.’s father on the birth certificate and that he has been the primary provider for the
care of G.H. from birth until present.
{¶ 3} On August 24, 2021, appellee, J.F., mother of G.H., filed an emergency
motion to vacate the emergency custody order. Proof of Kentucky school enrollment of
the minor child was filed by mother on August 25, 2021. The magistrate appointed a
guardian ad litem on August 27, 2021.
{¶ 4} On August 30, 2021, the magistrate ordered both parents to provide
information required by the Uniform Child Custody Jurisdiction and Enforcement Act, or
“UCCJEA.” Mother then filed a motion for a paternity test, and motion to dismiss for
lack of jurisdiction on September 7, 2021. The magistrate granted an in-camera
interview of the minor child on September 8, 2021, and designated J.F. as the residential
parent on the same day.
{¶ 5} The in-camera interview of the minor child occurred on September 10, 2021.
On October 6, 2021, mother filed a motion to dismiss the proceedings for lack of
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standing. On October 8, the magistrate granted S.H. parenting time with G.H. Then, on
October 6, 2021, a hearing began on the issues of jurisdiction and paternity.
{¶ 6} On the first day of the hearing, mother presented her case, calling her
boyfriend, J.D., and herself, as witnesses. J.D. started dating mother in July 2021, and he
had accompanied her to drop-off and pick-up G.H. at his father’s residence in Ottawa
County. Specifically, one evening in August 2021, the Sunday before G.H. was to begin
first grade in Kentucky, he accompanied mother to pick up G.H. from father’s residence.
Father and G.H. could not be located, therefore, the pair remained in Ohio until
approximately 2:00 a.m. searching for G.H. A missing child report was issued for G.H.
Once G.H. was located, he appeared angry and distressed, but that otherwise G.H. always
appeared healthy, happy and taken care of in mother’s care.
{¶ 7} Mother then testified that she has been the sole provider of medical, dental,
and vision care as G.H. is provided insurance by the state of Kentucky as a resident there.
She also provides education expenses for G.H. when he is in her care. Because S.H. has
a larger family than mother’s, and her own extended family live in Toledo, birthday
parties were often held for G.H. in Ottawa County, and her own mother would mail
birthday cards for G.H. to father’s home instead of her own.
{¶ 8} Mother continued testifying that S.H. is not G.H.’s biological father, and in
fact, on cross-examination, she stated a man named T.N. is the biological father. Mother
informed S.H. of this prior to G.H.’s birth, and S.H. still signed G.H.’s birth certificate.
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Furthermore, G.H.’s middle-name is the same as S.H.’s first name. After G.H.’s birth, all
three lived together in Genoa, Ohio, for approximately a month or two before they moved
to Kentucky. After residing in Kentucky for approximately a month, her relationship
with S.H. ended and he moved back to Ohio, but G.H. remained with her in Kentucky.
{¶ 9} No custody arrangements were made for G.H. as the parties were never
married, but G.H. would frequently visit S.H. in Ohio. Furthermore, no child support has
been provided for G.H. However, mother has permitted S.H. to claim G.H. as a
dependent on his income taxes since G.H. was born in 2014.
{¶ 10} S.H. then presented his case, calling himself, his sister – Sh. H., his mother
– M.J.H., babysitters B.B., H.T., school administrators M.S. and C.S., a neighbor – C.P.,
stable owner E.P., mother’s sister S.B., and attorney C.M. as witnesses.
{¶ 11} On direct examination, S.H. testified that G.H. has resided with him from
September 2015 to the present in Ottawa County, and that mother has from time to time
visited with G.H. Appellant’s tax returns for the years 2014 through 2020, in which G.H.
was claimed as appellant’s dependent child, were admitted as evidence. S.H. also
admitted preschool attendance records from September 2018 until May 2019, from
Trinity Lutheran, a preschool in Elmore, Ohio. Proof of enrollment at Woodmore
Elementary School in Ottawa County from 2019 until 2021 was also admitted.
Furthermore, an Independent Education Plan (“IEP”), dated October 11, 2019, was
admitted. S.H.’s signature was on the document indicating that he attended the meeting.
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{¶ 12} Birthday and Christmas cards sent from appellee’s mother to appellant’s
residence for G.H. were also admitted. S.H. testified that he never possessed any medical
card from Kentucky for the care of G.H, and that any medical expenses were paid at his
own expense.
{¶ 13} On cross-examination, appellant stated that he was aware of G.H.’s school
enrollment in Kentucky for the fall of 2021, and that there had been a discussion that
appellant would stay at the residence of J.F. for the first few days of G.H.’s school year.
He went on to testify that mother had “enrolled [G.H.] in Kentucky against what we
stated amongst each other on the phone. And again, like I said, I was in fear that I was
going to lose my son to be in Kentucky.” Appellant did admit that mother had taken
G.H. for regular vaccinations, yearly physical exams, and dental care and that the state of
Kentucky covered those expenses.
{¶ 14} S.H. also testified that he was aware that G.H. was not his biological child,
and he learned of this shortly after he and mother began dating. He also was also not able
to recall where G.H. attended school after the beginning of 2019, but admitted that for the
majority of 2021, G.H. resided with mother.
{¶ 15} Following redirect examination of S.H., the court determined that there was
no remaining time to continue the hearing, and testimony for the day was concluded.
{¶ 16} The second day and final day of the hearing was held on November 3,
2021, nearly a month later. At the beginning of the hearing, there was an agreement that
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mother would recall appellant for additional cross-examination. The hearing then began
with the direct examination of M.J.H., mother of appellant.
{¶ 17} M.J.H. testified that appellant lives with her, and that G.H. has resided with
them continuously since 2015, when G.H. was ten months old. During that time, until
G.H. was three years old, visitation with mother was sporadic. M.J.H. worked second-
shift at the Ottawa County Sheriff’s Office, and she was able to care for G.H. However,
during times that both she and appellant were working, three babysitters – B.B., H.T., and
S.K. would care for G.H. G.H. attended preschool in 2019, and was registered for
kindergarten, but only attended kindergarten virtually due to the pandemic. According to
M.J.H., visitation became more frequent with mother in March or April of 2021. As for
the current dispute, M.J.H. testified that G.H. went for a visit with his mother and she
would not bring him back. Therefore, S.H. filed a motion for custody.
{¶ 18} On cross-examination, with respect to the evening that mother and J.D.
came to pick-up G.H., and he could not be located, M.J.H. was unable to reach S.H.
because his phone was left at her residence. When G.H. came to visit that weekend, she
knew that S.H. had no intention of returning G.H. to her to begin school in Kentucky and
that she had concerns of G.H. being neglected in mother’s home.
{¶ 19} The next witness was B.B. – a babysitter of G.H., who resides in Ottawa
County, and babysat G.H. for a total of four weeks in 2015, 25 weeks in 2016, and 27
weeks in 2017. On cross-examination, she testified that she never had contact with
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mother and provided her tax identification number and total amounts paid for care so that
S.H. could report it on his tax returns.
{¶ 20} H.T. – another care provider located in Ottawa County testified that she
provided babysitting services for G.H. in 2016, every weekday, for approximately three
months during the summer.
{¶ 21} S.K. – father’s sister, testified that she babysat for G.H. in 2018 and 2019,
and early 2020, Monday through Friday, from approximately 7:00 to 8:00 a.m. to 5:00
p.m., for 48 weeks each year. She stopped providing daycare services during the
COVID-19 pandemic because father and his girlfriend at the time, were no longer
working and cared for G.H. She would see mother when she would come to pick up
G.H. and at G.H.’s birthday parties. As for visits with mother, G.H. would visit mother
sometimes for two weeks at a time, but that G.H. would typically return after one week.
{¶ 22} M.S., an administrator of Trinity Lutheran Preschool, testified that G.H.
attended preschool there in 2018-2019, where he attended class on Tuesdays and
Thursdays, from 9:00 a.m. to 11:30 a.m. M.S. recalled on one occasion that G.H. went to
visit mother and that father paid for preschool.
{¶ 23} C.M., and attorney, testified that he has represented various members of
father’s family as well as mother’s previous husband, and that he generally believed that
G.H. resided with father.
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{¶ 24} C.P., a neighbor of father, testified next. His testimony revealed that he has
two sons who would see G.H. daily, and that he was under the impression that G.H. lives
with father. He could not recall G.H. being away for weeks at a time.
{¶ 25} S.B., sister of mother, then appeared by Zoom. She visited her sister a few
times a year, and would talk via telephone at least every couple of weeks. She initially
appeared for the first day of the hearings, on October 3, 2021, and has not had contact
with her sister since that day. She believed she saw G.H. in the Spring of 2021, but that
she had not seen him for several years prior when she would visit her sister. As far as the
Spring visit, she recalled that mother took G.H. back to Ohio early. Her overall
impression was that G.H. resided with father and that she had concerns about the stability
of mother’s home because mother moved frequently.
{¶ 26} E.P. next testified that he would see G.H. when father’s girlfriend would
come to his barn to rider her horse. He saw G.H. approximately fifteen to twenty times in
2021.
{¶ 27} C.S. – an administrator at Woodmore Local Schools testified that she
knows father, and that G.H. was enrolled in the district from 2019 until his withdrawal in
2021. G.H. was identified as a child with a speech-related disability, and therefore, he
was able to be enrolled in the school under federal guidelines despite not having any
custody documents. State law would have required the school to have custody
documents. She testified that despite G.H. being enrolled in the district, S.H. opted to
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provide homeschooling for G.H. in 2020 due to the pandemic. Furthermore, G.H. was
enrolled in home school during kindergarten. Because G.H. was being home-schooled,
the district was not required to provide services under the IEP. Notably, and for the first
time mentioned by anyone in the hearing, C.S. indicated that court proceedings related to
G.H. might be occurring in Kentucky, and that she had prepared a document for father to
use at that hearing.
{¶ 28} Due to the surprising nature of the testimony, there was discussion between
the guardian ad litem and the court, and father’s attorney indicated that there was a
hearing in Kentucky on October 26, 2021, which he learned from father.
{¶ 29} Following C.S.’s testimony, exhibits were admitted, father rested his case
and the court recessed for a lunch break.
{¶ 30} Following the break, mother was permitted a re-cross-examination of
father, which is labeled as re-direct testimony in the transcript. However, during his
testimony, the guardian ad litem interrupted the proceedings and the magistrate
announced the following regarding pending proceedings in Kentucky:
[I]t has come to this Court’s attention that a case of In The Matter
Of: [G.H.] was filed in Boone County, Kentucky, even though, technically,
it was alluded to today in testimony, but no one necessarily gave us notice
of that. So, in the meantime, the Honorable Judge Bramlage from Boone
County, Kentucky called. And so we spoke and it’s my understanding she
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recorded it and that’s when I had to relay to the Honorable Judge Hany,
who presides over this Court. So when there are two competing states and
jurisdiction, the Supreme Court tells us that the judges are supposed to
make contact with each other, discuss judicial economy, and which court
should assume jurisdiction. So remember when this started, there was not a
proceeding, or I was not notified of any other proceeding. You were saying
they didn’t have jurisdiction, Ohio didn’t, but nothing, we didn’t know that
there was actually a case pending in Boone County, Kentucky.
MR. WHITCOMB: I don’t know if there was, Your Honor.
[J.F.]: There was.
THE COURT: Correct, but there is now. And so the Honorable
Judge Bramlage, myself, and Judge Hany have agreed that Boone County,
Kentucky will assume jurisdiction. And we will put the primary reasons,
primarily being one that Children’s Services is involved, and child is
physically residing there. So for their Children’s Services to investigate,
which they are currently in an investigation, it would be difficult for them
to travel to Ohio to investigate. That’s one.
Now, I will tell you, as I talked to Judge Bramlage, I believe the
evidence, by clear and convincing evidence, shows the child resided in the
Ottawa County area 2015, ’16, ’17, ’18, ’19, and that the evidence is murky
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once we get to March of 2020. But before that, I think it’s clear child was
living here and going to school here, being babysat. I have a number of
factors. So she is aware of that as the child did live here.
{¶ 31} The court went on to indicate that mother had filed a private action for
dependency in Kentucky, and that neither the magistrate or judge in Ohio had yet to
review the pleadings that were filed. The magistrate did indicate that jurisdiction might
be returned back to Ohio if the court in Kentucky dismisses the dependency action, or if
the judge in Kentucky ultimately awards father custody. The magistrate indicated that a
decision with findings would be forthcoming and the proceedings ended.
{¶ 32} On November 12, 2021, the magistrate entered an “order,” and on
November 22, 2021, appellant filed a motion to “set aside” that order. In his motion,
appellant also requested findings of fact and conclusions of law. On January 19, 2021,
the trial court entered judgment on that order. The entirety of the January 19, 2021
judgments states,
A Juvenile Dependency/Neglect or Abuse Petition was filed by
[mother] on October 18, 2021 in the Family Court of Boone County,
Kentucky. The Petition alleged that [G.H.] is a dependent child. On
November 5, 2021 (and again on November 16), the Court determined that
the Commonwealth of Kentucky has jurisdiction over the child who is
referenced above. In re: [G.H.], Boone County Kentucky Family Court,
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54th Judicial Circuit, Division II, Case No. 21-00270-003 (See copies of
that Court’s Orders attached hereto.) In addition, due to Petitioner’s
allegations, that case takes priority over this civil matter.
Assignments of Error
{¶ 33} Appellant filed a notice of appeal from the January 19, 2021 judgment on
February 18, 2021, and now sets forth the following three assignments of error:
I. THE TRIAL COURT MAGISTRATE VIOLATED
APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY
ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN IT
ABRUPTLY TRANSFERRED JURISDICTION OF THE CASE TO
BOONE COUNTY, KENTUCKY
II. THE TRIAL COURT ABUSED ITS DISCRETION IN
TRANSFERRING THE JURISDICTION OF THE CASE CONTRARY
TO CIV. R. 53(D)(2)(a)(i)
III. THE TRIAL COURT MAGISTRATE’S DECISION TO
TRANSFER THE JURISDICTION OF THE CASE TO BOONE
COUNTY, KENTUCKY WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE ADDUCED AT TRIAL
{¶ 34} We will review appellant’s second assignment of error first because it is
dispositive to this appeal.
12.
Analysis
{¶ 35} Civ.R. 53(D)(2)(a)(i) states, “Subject to the terms of the relevant reference,
a magistrate may enter orders without judicial approval if necessary to regulate the
proceedings and if not dispositive of a claim or defense of a party.” Because this case
originated in juvenile court, we turn to the Rules of Juvenile Procedure for additional
guidance.
{¶ 36} Juv.R. 40 governs magistrates in juvenile court proceedings, and provides
that magistrates are “authorized, subject to the terms of the relevant reference, to regulate
all proceedings as if by the court and to do everything necessary for the efficient
performance of those responsibilities * * *.” Juv.R. 40(C)(2). The juvenile court refers a
“particular case or matter or a category of cases or matter to a magistrate by a specific or
general order of reference or by rule,” and “may limit a reference by specifying or
limiting the powers * * *.” Juv.R. 40(D)(1)(b). Furthermore, “[t]he designation of a
magistrate’s determination of an issue as a “magistrate’s order” or “magistrate’s
decision” is not merely a matter of form, but rather one of substance.” In re L.D.M., 12th
Dist. Butler No. CA2020-07-078, 2021-Ohio-1853, ¶ 7, fn.1, citing In re N.J., 12th Dist.
Warren Nos. CA2016-10-086 and CA2016-10-090 thru Warren Nos. CA2016-10-091,
2017-Ohio-7466, ¶ 10, fn. 2.
{¶ 37} The issue with respect to father’s second assignment of error is whether
the magistrate’s ruling was an order or a decision. If it was an order, father would have
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had the option, to file a motion to vacate the order within ten days of the order being
filed; on the other hand, if it was a decision, he would have had the ability to
file objections to the decision within 14 days of the decision being filed. In this case,
father treated the ruling as an order and filed a motion to “set aside” within ten days from
the date of the magistrate’s decision.
Orders Entered by a Magistrate
{¶ 38} “Subject to the terms of the relevant reference, a magistrate may enter
orders without judicial approval if necessary to regulate the proceedings and if not
dispositive of a claim or defense of a party.” (Emphasis added.) Juv.R. 40(D)(2)(a)(i).
The rule provides the following as examples of matters upon which a magistrate may
issue orders:
(A) Pretrial proceedings under Civ.R. 16;
(B) Discovery proceedings under Civ.R. 26 to 37, Juv.R. 24, and Juv.R.25;
(C) Appointment of an attorney or guardian ad litem pursuant to Juv.R.
4 and Juv.R.29(B)(4);
(D) Taking a child into custody pursuant to Juv.R. 6;
(E) Detention hearings pursuant to Juv.R. 7;
(F) Temporary orders pursuant to Juv.R. 13;
(G) Extension of temporary orders pursuant to Juv.R. 14;
(H) Summons and warrants pursuant to Juv.R. 15;
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(I) Preliminary conferences pursuant to Juv.R. 21;
(J) Continuances pursuant to Juv.R. 23;
(K) Deposition orders pursuant to Juv.R. 27(B)(3);
(L) Orders for social histories, physical and mental examinations pursuant
to Juv.R. 32;
(M) Proceedings upon application for the issuance of a temporary protection
order as authorized by law; [and]
(N) Other orders as necessary to regulate the proceedings.
Juv.R. 40(D)(2)(a)(iii).
{¶ 39} Juv.R. 40 further provides that “[a]ny party may file a motion with the
court to set aside a magistrate’s order [and] [t]he motion * * * shall be filed not later than
ten days after the magistrate’s order is filed.” Juv.R. 40(D)(2)(b).
{¶ 40} Therefore, “a magistrate’s ability to issue orders is limited to regulatory,
non-dispositive orders.” In re: H.R.K., 8th Dist. Cuyahoga No. 97780, 2012-Ohio-4054, ¶
8; J & B Fleet Indus. Supply, Inc. v. Miller, 7th Dist. Mahoning No. 09 MA 173, 2011-
Ohio-3165, ¶ 30 (magistrates may issue orders regulating discovery); Campbell v.
Pryor, 5th Dist. Stark No. 2010CA00231, 2011-Ohio-1222, ¶ 40 (magistrate cannot issue
order sentencing party to jail term, but instead may only make recommendation to the
trial court as to the sentencing); Beagle v. Beagle, 10th Dist. Franklin No. 07AP-494,
2008-Ohio-764, ¶ 12 (magistrates may issue temporary support orders).
15.
Decisions Entered by a Magistrate
{¶ 41} Juv.R. 40(D)(3) governs a magistrate’s decision. The rule requires
a magistrate to issue a decision when deciding “any matter referred under Juv.R.
40(D)(1).” Juv.R. 40(D)(3)(a)(i). Subsection (D)(1)(a) references subsection (C)(1),
which sets forth the scope of a magistrate’s authority to do any of the following:
(a) Determine any motion in any case, except a case involving the
determination of a child’s status as a serious youthful offender;
(b) Conduct the trial of any case that will not be tried to a jury, except the
adjudication of a case against an alleged serious youthful offender;
(c) Exercise any other authority specifically vested in magistrates by statute
and consistent with this rule. (Emphasis added.)
{¶ 42} After a magistrate issues his or her written decision, a party may file
written objections to the decision within 14 days of the filing of the decision. Juv.R.
40(D)(3)(b)(i). If a party objects to a magistrate’s factual finding, the trial court must
conduct an “independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately applied the
law.” Juv.R. 40(D)(4)(d).
{¶ 43} The independent review requires the trial court to conduct a de novo review
of the facts and an independent analysis of the issues to reach its own conclusions about
the issues in the case. In re T.J., 2021-Ohio-4085, 180 N.E.3d 706, ¶ 42 (6th Dist.),
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citing Barker v. Barker, 6th Dist. Lucas No. L-00-1346, 2001 WL 477267, *3 (May 4,
2001) (An independent review is “the equivalent of a de novo determination.”).
{¶ 44} Furthermore, unlike a magistrate’s order, a magistrate’s decision is not
effective until adopted by the trial court. Juv.R. 40(D)(4)(a).
{¶ 45} In this case, it is evident the trial court treated the magistrate’s
November 12, 2021 ruling as an “order” because the January 19, 2021 order dismissing
the complaint states, “On November 5, 2021 (and again on November 16), the Court
determined that the Commonwealth of Kentucky has jurisdiction over the child who is
referenced above.” However, because the motions of mother were referred for trial
before the magistrate, and the magistrate’s ruling disposed of mother’s motion to dismiss
for lack of jurisdiction, the magistrate’s ruling was substantively a decision under the
rules. Juv.R. 40(D)(3).
{¶ 46} Although the trial court later entered an order on the decision, the trial
court did not “undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately applied
the law” as required under Juv.R. 40(D)(4)(d). In fact, the magistrate has not yet entered
findings of fact or conclusions of law as requested in appellant’s November 22, 2021
motion, and the decision has not yet been “adopted” by the court as required by Juv.R.
40(D)(4)(a).
17.
{¶ 47} Therefore, appellant’s second assignment of error is sustained. Because
our disposition of the second assignment of error renders the first and third assignments
of error premature, we do not consider them.
Conclusion
{¶ 48} Accordingly, the trial court’s judgment dismissing father’s complaint and
transferring the matter to Kentucky is reversed, and the case is remanded to the trial court
for further proceedings consistent with this opinion. The costs of this appeal are assessed
to appellee pursuant to App.R. 24. It is so ordered.
Judgment reversed,
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.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
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/.
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