In re C.S. , 2014 Ohio 2400 ( 2014 )

[Cite as In re C.S., 2014-Ohio-2400.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100470, 100471, 100506, 100507
IN RE: C.S., ET AL.
Minor Children
[Appeal by: N.B., Mother, and E.S., Father]
JUDGMENT:
REVERSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 11918529 and AD 11918530
BEFORE: Rocco, P.J., Keough, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: June 5, 2014
ATTORNEYS FOR APPELLANT MOTHER N.B.
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Lisa Rankin
Assistant Public Defenders
310 Lakeside Ave., Suite 200
Cleveland, Ohio 44113
ATTORNEY FOR APPELLANT FATHER E.S.
Jeffrey R. Froude
P.O. Box 771112
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Nicole A. Raimo
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
GUARDIAN AD LITEM FOR C.S. AND A.S.
Irina Vinogradsky
Law Offices of Irina Vinogradsky
27600 Chagrin Blvd., Suite 420
Woodmere, Ohio 44122
KENNETH A. ROCCO, P.J.:
{¶1} In this consolidated appeal, defendant-appellants N.B., the mother, and E.S.,
the father, of two minor children, C.S. and A.S., appeal the trial court’s decision denying
their joint motion to declare Ohio an inconvenient forum for the permanent custody
proceedings in this matter. We find merit to the appeal and reverse the trial court’s
decision.
{¶2} In May 2011, the mother relocated to Ohio from Tennessee with her two
children, C.S. and A.S. At that time, the father resided in Tennessee and has continued
to reside in Tennessee. On October 19, 2011, the mother was arrested and charged with
two counts of child endangering after she was found passed out and intoxicated in her car.
A.S. (who was then two years old) was found asleep in the car. C.S. (who was then four
years old) was found walking down the street with another young child.
{¶3} On October 21, 2011, plaintiff-appellee the Cuyahoga County Division of
Children and Family Services (“CCDCFS”) filed a complaint for abuse, neglect, and
temporary custody, and the children were placed in emergency temporary custody. The
parents admitted to an amended complaint, and on December 15, 2011, the children were
adjudged neglected. On April 16, 2012, the children were committed to the temporary
custody of CCDCFS. Several months later, in July 2012, the children were placed with
their maternal grandparents in Tennessee. The children have resided with their
grandparents in Tennessee since that time. On February 28, 2013, CCDCFS filed a
motion for permanent custody of the children. In April 2013, the mother moved back to
Tennessee.
{¶4} On May 29, 2013, the mother, the father, and the guardian ad litem for the
children filed a joint motion to declare Ohio an inconvenient forum, to stay the current
proceedings, and to transfer the case to Tennessee pursuant to R.C. 3127.21. The parties
argued that because the mother, father, children, and maternal grandparents (who had
expressed a desire to adopt the children) all resided in Tennessee, Ohio was an
inconvenient forum for the permanent custody proceedings, and the action should,
therefore, be stayed on the condition that custody proceedings be filed in Tennessee.
Appellants also argued that Tennessee was a more convenient forum for the action
because (1) CCDCFS cannot offer the parents any services in Tennessee, (2) Tennessee’s
Department of Children’s Services is familiar with the case, having provided a social
worker to facilitate and monitor the parents’ visitation with the children in Tennessee, and
(3) transfer could facilitate the grandparents’ adoption of the children under Tennessee
law. The guardian ad litem also supported the motion, arguing that a guardian ad litem
needs to be able to personally meet with and observe the interaction between the parents,
the children, and the proposed custodians in order to make a proper recommendation
regarding what is in the best interests of the children.
{¶5} CCDCFS opposed the motion. In its opposition, CCDCFS argued that Ohio
should not be declared an inconvenient forum because: (1) no one had initiated or had
ever expressed an interest in initiating child custody proceedings in Tennessee, (2) all of
the providers who had attempted to provide reunification services to the mother (from
May 2011 until the mother moved back to Tennessee in April 2013) were located in
Cuyahoga County, Ohio, and (3) transfer of the case would not be in the best interests of
the children because it would delay permanency.
{¶6} Prior to ruling on the motion, the magistrate held a hearing at which the
parties presented their arguments. The magistrate also attempted to set up a telephonic
hearing with the presiding judge of the Juvenile Court of Knox County, Knoxville,
Tennessee to discuss the matter. The Tennessee judge declined to participate in the
requested hearing because no action was then pending in the Knox County Juvenile
Court.
{¶7} On July 31, 2013, the magistrate issued an order denying appellants’ motion,
concluding that Cuyahoga County was the “more convenient forum” for the permanent
custody proceedings. Although the magistrate acknowledged in his decision that the
Juvenile Court of Knox County, Knoxville, Tennessee “has refused both jurisdiction and
[a Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)] hearing,” he
indicated that his decision was made “[i]rrespective of the denial by Tennessee, based
upon the 8 statutory factors listed in R.C. 3127.21(B).”
{¶8} Both the mother and father filed objections to the magistrate’s decision. On
September 9, 2013, the trial court entered an order overruling the parties’ objections and
affirming, approving, and adopting the magistrate’s decision. The trial court concluded
that “the [m]agistrate performed a lawful and thorough analysis of the UCCJEA in
making his decision to deny the request to transfer this case to Tennessee” and did “not
find any error in [the magistrate’s] assignment of weight to the statutory factors nor his
determination that jurisdiction remain in Cuyahoga County in the State of Ohio.”
{¶9} Both the mother and father appealed, each presenting a single assignment of
error for review. The mother’s assignment of error states:
The juvenile court erred when it denied the motion to declare Ohio an
inconvenient forum.
The father’s assignment of error states:
The trial court erred in overruling defense Motion to find Cuyahoga County
forum non conveniens in an ongoing Juvenile Division case in which the
Division of Children and Family Services moved for permanent custody.
The children, the father, the grandparents and even the mother at present are
all residents of Tennessee. In so ruling the trial court misapplied the
relevant factors of [R.C. 3127.21] and Chambers v. Merrell-Dow
Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988).
{¶10} As a preliminary matter, we note that we have jurisdiction to hear this
appeal because the trial court’s decision declaring Ohio to be a convenient forum is a
final, appealable order. This court has previously held that “‘a trial court order regarding
the determination of convenient forum “affects a substantial right made in a special
proceeding” pursuant to R.C. 2505.02(B)(2) and is thus a final appealable order.’”
Javidan-Nejad v. Navadeh, 8th Dist. Cuyahoga No. 97956, 2013-Ohio-931, ¶ 7, quoting
Critzer v. Critzer, 8th Dist. Cuyahoga No. 90679, 2008-Ohio-5126, ¶ 9, quoting Buzard v.
Triplett, 10th Dist. Franklin No. 05AP-579, 2006-Ohio-1478.
{¶11} Turning to the merits of this appeal, appellants argue that the trial court
abused its discretion in refusing to declare Ohio to be an inconvenient forum in which to
hear this case. We review a trial court’s decision whether to decline to exercise its
jurisdiction on forum non conveniens grounds under R.C. 3127.21 for abuse of discretion.
See, e.g., Buzard at ¶ 11; White v. Ritchey, 7th Dist. Mahoning No. 12 MA 98,
2013-Ohio-4164, ¶ 12, citing In re N.R., 7th Dist. Mahoning No. 09-MA-85,
2010-Ohio-753, ¶12; Walter v. Liu, 193 Ohio App.3d 185, 2011-Ohio-933, 951 N.E.2d
457, ¶ 12 (8th Dist.). Likewise, we review a trial court’s decision to adopt a magistrate’s
decision for abuse of discretion. In re A.L., 8th Dist. Cuyahoga No. 99040,
2013-Ohio-5120, ¶ 10, citing Dancy v. Dancy, 8th Dist. Cuyahoga No. 82580,
2004-Ohio-470, ¶ 10.
{¶12} Pursuant to R.C. 3127.21(A), an Ohio court that has jurisdiction to make a
child custody determination “may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that a court of
another state is a more convenient forum.” Prior to making this determination, the trial
court must consider “all relevant factors,” including: (1) whether domestic violence has
occurred and is likely to continue in the future and which state could best protect the
parties and the child; (2) the length of time the child has resided outside Ohio; (3) the
distance between the court in Ohio and the court in the state that would assume
jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of
the parties as to which state should assume jurisdiction; (6) the nature and location of the
evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the
procedures necessary to present the evidence; and (8) the familiarity of the court of each
state with the facts and issues in the pending litigation. R.C. 3127.21(B). R.C.
3127.21(B) is mandatory; the trial court “must consider the factors listed in the statute” in
determining whether it is an inconvenient forum. Witt v. Walker, 2d Dist. Clark No.
2012-CA-58, 2013-Ohio-714, ¶ 22.
{¶13} If an Ohio court determines that it is an inconvenient forum and that a court
of another state is a “more appropriate forum” to hear a custody case, R.C. 3127.21(C)
provides that the Ohio court “shall stay the proceedings upon condition that a child
custody proceeding be promptly commenced in another designated state” and “may
impose any other condition the court considers just and proper.”
{¶14} The magistrate’s decision states that “the court considered all mandatory
relevant factors” pursuant to R.C. 3127.21(B) and found (1) the nature and location of the
evidence required to resolve the pending litigation, R.C. 3127.21(B)(6), and (2) the
familiarity of the court of each state with the facts and issues in the pending litigation,
R.C. 3127.21(B)(8), to be the factors most “critical and dispositive” to the case. As the
magistrate explained in his decision:
In this case, the CCDCFS has nearly two years of evidence accumulated
and Tennessee has not had direct involvement with the case. * * * In this
case, the home Court has been monitoring the case for nearly two years and
the Tennessee Court has had no involvement in the matter, with one
exception based upon this Court’s attempt to set up a telephonic hearing
between the two jurisdictions. This Magistrate discussed the motion with
the presiding judge for Knoxville County Tennessee who had declined a
telephonic hearing and jurisdiction of the matter since Tennessee[’s] cour[t]
has no involvement in the matter.
{¶15} The magistrate rejected appellants’ arguments that Tennessee was a more
appropriate forum because the adoption of the children would occur in Tennessee and that
CCDCFS could not provide services to the parents in Tennessee, concluding that
CCDCFS could facilitate an out-of-state adoption and that “[t]he issue of reasonable
services is an issue * * * [related to] permanent custody * * * not R.C. 3127.21.” The
magistrate likewise rejected the parties’ arguments related to the guardian ad litem’s
investigation, concluding that the guardian ad litem could “discharge her duties in a
reasonable manner given the distance between the states” by relying on an out-of-state
home investigation and communicating with the children, parents, and potential
custodians by telephone or other means of communication, such as Skype. The
magistrate reasoned that the “harm caused by the Tennessee Court not having two
years[’] worth of testimony from Cuyahoga County case workers [far] outweighs the
benefit gained from a local [g]uardian ad [l]item appointment.”
{¶16} Appellants contend that the magistrate’s decision was based on the faulty
“assumption that the Tennessee court had already declined jurisdiction over the case” and
that the magistrate either ignored or failed to give sufficient weight to the most relevant
statutory factors in determining that Ohio was the “more convenient forum” for this
action. Appellants’ arguments have merit.
{¶17} Contrary to the magistrate’s findings, the Tennessee judge’s refusal to
participate in the teleconference requested by the magistrate did not constitute a “refusal”
or “denial” of “jurisdiction” by the Tennessee court. The Tennessee judge reasonably
refused to participate in a teleconference related to a case in another jurisdiction, in which
he had no involvement, given that no action had yet been filed in the Knox County
Juvenile Court. That an action has not yet been filed in Tennessee is not determinative
of whether Ohio is an inconvenient forum. R.C. 3127.21(C) provides that if an Ohio
court determines that it is an inconvenient forum and that a court of another state is a
more appropriate forum to hear a custody case, the Ohio court “shall stay the proceedings
upon condition that a child custody proceeding be promptly commenced in another
designated state.” If such proceedings are not promptly commenced in the other
designated state, the stay may be lifted and the proceedings continued in the Ohio court.
{¶18} With respect to the magistrate’s consideration of the relevant statutory
factors, we find that the magistrate placed undue emphasis on the location of CCDCFS
witnesses and the fact that the Ohio court has been “monitoring the case for nearly two
years” and unreasonably ignored other, more relevant facts in determining that Ohio was
the “more convenient forum” for the permanent custody proceedings in this case.
{¶19} This case involves the future of two young children who live in Tennessee,
who have spent most of their lives in Tennessee, who attend or will attend school in
Tennessee, and whose parents and family, including the grandparents who have expressed
an interest in adopting them, all live in Tennessee. With the exception of CCDCFS
personnel involved in the case and the current guardian ad litem, all of the parties and
potential witnesses — both parents, the children, the grandparents, and Tennessee
Children’s Services personnel familiar with the case — are in Tennessee. R.C.
3127.21(C)(6). The determination of the permanent custody of these children will most
affect, and be most affected by, people and resources in Tennessee. Although the
magistrate cited the “harm caused by the Tennessee Court not having two years[’] worth
of testimony from Cuyahoga County case workers” as one of the primary reasons for
denying appellants’ motion, there is nothing in the record that suggests that this evidence
would not be available to the Tennessee court if Tennessee were determined to be a more
convenient forum for the permanent custody proceedings. Further, although CCDCFS
representatives may have first-hand knowledge regarding events that occurred before the
mother moved to Tennessee in April 2013, the record reflects that, since that time,
CCDCFS has relied on information obtained from the Tennessee social worker who is
monitoring the case. The fact that CCDCFS representatives in Ohio may have
information relevant to the permanent custody proceedings does not override all other
relevant factors in determining whether Ohio or Tennessee is the more convenient forum.
Likewise, although there are certainly benefits to having a court familiar with a case
continue handling that case, there is nothing that suggests that the history or facts of this
case are so complex or unusual that the benefits associated with continuing proceedings
in Cuyahoga County can be said to outweigh the burdens associated with litigating a
custody matter in an otherwise inconvenient forum. R.C. 3127.21(B)(8).
{¶20} With respect to the remaining factors specified in R.C. 3127.21(B), the
children have spent most of their lives in Tennessee, either with their parents (before their
mother moved them briefly to Ohio), or their grandparents, following placement by
CCDCFS. R.C. 3127.21(B)(2). As to the distance between the Cuyahoga County
Juvenile Court and the court in Tennessee that would assume jurisdiction, R.C.
3127.21(B)(3), the evidence in the record is that the distance between the Ohio court and
the parties’ residences in Tennessee is approximately ten hours’ driving time, i.e., ten
hours’ driving time for each of the parents, grandparents, and children to attend any
proceedings in the case and ten hours’ driving time if the guardian ad litem sought to
personally interview the parents, children, or prospective custodians. Although the
magistrate downplayed the importance in-person visits by the guardian ad litem,
suggesting that telephone or Skype communications would be adequate for the guardian
ad litem to complete her investigation and to make her recommendation regarding what is
in the best interests of the children, reliance on electronic communications is not a
preferred method of observing interactions and communicating with young children,
particularly young children who do not know the guardian ad litem. R.C.
3127.21(B)(3), (6). As to the relative financial circumstances of the parties, R.C.
3127.21(B)(4), it is undisputed that the parents and grandparents have limited financial
resources and that the time away from work and expense necessary to travel to Ohio from
Tennessee (and back again) would impose a financial hardship on them. Both parents
and the guardian ad litem agree that Tennessee should assume jurisdiction; only
CCDCFS objects. R.C. 3127.21(B)(5). As to the ability of the court of each state to
expeditiously decide the issues in this case and the availability of procedures necessary to
present the evidence, R.C. 3127.21(B)(7), there is nothing in the record to suggest that the
Tennessee court could not handle this case expeditiously or lacks the procedures
necessary for the presentation of relevant evidence.1
{¶21} Further, R.C. 3127.21(B) requires that the trial court consider not only the
factors specifically identified in the statute but “all relevant factors” in determining
whether Ohio is an inconvenient forum. We believe that in a case such as this, the
availability of services for the parents is an additional “relevant factor” to be considered
in evaluating which state is a more convenient forum. In this case, given that both
parents now reside in Tennessee, that factor favors Tennessee.
{¶22} Upon a careful review of the record, we find that the trial court abused its
discretion in concluding that Ohio was a more convenient forum to hear this case than
Tennessee. Accordingly, we reverse the trial court’s decision. The case is remanded to
the trial court to enter an order staying proceedings in this case, in accordance with R.C.
3127.21(C), on the condition that a permanent custody proceeding be promptly
commenced in Tennessee.
{¶23} Judgment reversed and remanded.
It is ordered that appellants recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
R.C. 3127.21(B)(1), involving issues relating to domestic violence, is not
1
applicable in this case.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR