Cotner v. Coey ( 2020 )

[Cite as Cotner v. Coey, 2020-Ohio-5499.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
RODNEY COTNER : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2020 CA 00007
CARISSA COEY :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Case No. 2019 PA
00145JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 2, 2020
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JASON A. PRICE
PRICE LAW GROUP
126 East Chestnut Street
Lancaster, OH 43130
[Cite as Cotner v. Coey, 2020-Ohio-5499.]
Gwin, J.,
{¶1} Appellant Rodney Cotner (“Father”) appeals the January 22, 2020 judgment
entry of the Fairfield County Court of Common Pleas, Domestic Relations Division,
certifying the matter to the Fairfield County Court of Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} On July 25, 2019, Father filed a complaint for parentage and allocation of
parental rights and responsibilities against Carissa Coey (“Mother”). Father and Mother
have two children, R.C., born on January 13, 2017, and N.C., born on March 9, 2019.
{¶3} On January 9, 2020, the parties entered into an agreed judgment entry, in
which Mother was named as the residential and custodial parent of the minor children.
Father had parenting time with the children each week.
{¶4} Father filed a motion for change of parental rights on January 21, 2020, due
to Mother’s alleged drug use. On the same day, Father filed a motion for ex parte order
of custody. The trial court provided notice to Fairfield County Child Protective Services
(“CPS”) that Father filed the motion for emergency custody.
{¶5} The magistrate held a hearing on Father’s emergency motion on January
21, 2020, and issued a judgment entry on the same day. The magistrate granted
temporary custody of the minor children to Father, but ordered him to comply with all
recommendations and requests of CPS.
{¶6} The next day, the trial court appointed Sonya Marshall (“Marshall”) as
guardian ad litem for the children. Marshall served as the guardian for R.C. and N.C.’s
sibling in a companion case since October of 2019. On January 22, 2020, Marshall filed
a motion for order certifying the case to juvenile court for further proceedings and motion
Fairfield County, Case No. 2020 CA 00007 3
for CPS to seek emergency shelter care custody and temporary custody of the children.
She cited R.C. 3109.06 in support of her motion to transfer. Marshall argued it was in
the best interest of the children for the case to be transferred to juvenile court due to the
domestic violence history between Father and Mother and the history of both Father and
Mother with CPS. Marshall believed it was in the best interest of the children for the
parents to obtain assistance and services through CPS.
{¶7} The magistrate held a hearing on Marshall’s motion on January 22, 2020.
Present at the hearing were Marshall and several employees from CPS. Marshall testified
she had concerns for R.C. and N.C.’s safety with Father due to a significant history of
domestic violence between Father and Mother. Marshall also had concerns about the
suitability of Mother to be the legal custodian of R.C. and N.C. She requested the case
be certified to Juvenile Court, an emergency shelter care order be issued, and temporary
custody be granted to CPS. Heather Stoneberger from CPS testified that CPS became
involved in the case approximately a week prior to the hearing, due to drug use by Mother.
Stoneberger stated the family had previously been involved with CPS and Father was not
cooperative with CPS.
{¶8} The trial court issued a judgment entry on January 22, 2020. The trial court
took judicial notice of the proceedings on January 21, 2020 and, based upon the
testimony presented on January 21 and January 22, found there was probable cause to
believe the children are dependent as defined in R.C. 2151.04. Pursuant to R.C. 2151.31
and R.C. 2151.311, the court found it was in the best interest of the children to place them
into the shelter care custody of CPS and this removal was necessary to prevent
Fairfield County, Case No. 2020 CA 00007 4
immediate threatened physical or emotional harm. The trial court transferred all issues
related to the children to Fairfield County Juvenile Court.
{¶9} Father appeals the January 22, 2020 judgment entry of the Fairfield County
Court of Common Pleas, Domestic Relations Division, and assigns the following as error:
{¶10} “I. THE TRIAL COURT ERRED IN TRANSFERRING THE CASE TO
JUVENILE COURT.
{¶11} “II. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS.”
I.
{¶12} In Father’s first assignment of error, he argues the trial court committed
error in transferring the case to juvenile court because the requirements for transfer
contained in the applicable transfer statutes were not met. We agree with Father.
{¶13} In Marshall’s motion, she states that she is requesting transfer to the
juvenile court pursuant to R.C. 3109.06. Pursuant to the plain language of R.C. 3109.06,
the consent of the juvenile court to transfer is required unless the domestic relations court
finds the parents unsuitable to have parental rights and responsibilities for the care of the
children and unsuitable to provide the place of residence and be the legal custodian of
the children. In this case, the juvenile court did not consent to the transfer prior to the
judgment entry of the domestic relations court on January 22, 2020. Further, the domestic
relations court did not make a finding of parental unsuitability. Thus, the requirements for
transfer under R.C. 3109.06 were not met.
{¶14} There are a number of other means by which a juvenile court may acquire
jurisdiction over custody matters. Relevant to this case are the transfer mechanisms in
R.C. 3109.04(D)(2) and R.C. 2151.23(A)(1).
Fairfield County, Case No. 2020 CA 00007 5
{¶15} R.C. 3109.04, entitled allocating and modifying parental rights and
responsibilities, authorizes a domestic relations court to certify a case to the juvenile court
for further proceedings, “if the court finds * * * that it is in the best interest of the child for
neither parent to be designated the residential parent and legal custodian of the child.”
R.C. 3109.04(D)(2). In this case, while the trial court found it was in the best interest of
the children to place them into shelter care, the trial court did not find it was in the best
interest of the children for neither parent to be the designated residential parent and legal
custodian of the children. Thus, the trial court did not make the required finding for
transfer pursuant to R.C. 3109.04(D)(2).
{¶16} The trial court found there was probable cause to believe the children were
dependent pursuant to R.C. 2151.04. R.C. 2151.23 provides that the juvenile court has
exclusive original jurisdiction, “concerning any child who on or about the date specified in
the complaint, indictment, or information is alleged * * * to be a * * * delinquent, unruly,
abused, neglected, or dependent child * * *.” R.C. 2151.23(A)(1). In the instant case,
allegations of abuse, neglect, or dependency were not contained in an indictment or
information, as the record does not indicate the allegations were conveyed by a grand
jury or prosecutor without a grand jury. Further, in this case, there was no complaint filed
alleging abuse, neglect, or dependency on or about January 22. Instead, the trial court
based its findings on testimony presented to the magistrate at the January 22nd hearing.
While CPS did file a complaint requesting a dependency finding due to Mother’s
substance abuse and Father’s unwillingness to allow the agency to assess their concerns,
this complaint was not filed until February 7, 2020, over two weeks after the trial court
issued the transfer judgment entry. Accordingly, the statutory requirements for transfer
Fairfield County, Case No. 2020 CA 00007 6
pursuant to R.C. 2151.23(A)(1) were not met. Thompson v. Valentine, 189 Ohio App.3d
661, 2010-Ohio-4075, 939 N.E.2d 1289 (12th Dist. Butler); State ex rel. Richland Cty.
Children Services v. Richland Cty. Court of Common Pleas, 152 Ohio St.3d 421, 2017-
Ohio-9160, 97 N.E.3d 429.
{¶17} In this case, the record indicates the trial court did not properly transfer the
case to juvenile court under R.C. 2151.23(A)(1), 3109.04(D)(2), or 3109.06. Appellant’s
first assignment of error is sustained.
II.
{¶18} Due to our disposition of Father’s first assignment of error, we find Father’s
second assignment of error is moot.
{¶19} Based on the foregoing, appellant’s first assignment of error is sustained.
Therefore, his second assignment of error is moot.
Fairfield County, Case No. 2020 CA 00007 7
{¶20} The January 22, 2020, judgment entry of the Fairfield County Court of
Common Pleas, Domestic Relations Division, transferring the case to the Juvenile
Division, is reversed and remanded to the Domestic Relations Division for further
proceedings in accordance with this opinion.
By Gwin, J.,
Hoffman, P.J., and
Wise, John J., concur