M.K. v. R.K. , 2023 Ohio 3475 ( 2023 )

[Cite as M.K. v. R.K., 2023-Ohio-3475.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
M.K., :
Plaintiff-Appellee, :
No. 112291
v.
R.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 28, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-21-384196
Appearances:
Schneider Smeltz Spieth Bell LLP, Ryan P. Nowlin, Mark
M. Mikhaiel, and Jenna R. Bird, for appellant.
Baron Family Law LLC, Alexis M. Gacey, and Brittany A.
Baron, for appellee.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, R.K., mother of B.K. (“Mother”), appeals from
the domestic relations court’s January 5, 2023 judgment certifying all issues
pertaining to the allocation of parental rights and responsibilities of B.K., the minor
child at issue in this appeal, to the Cuyahoga County Juvenile Court. After a
thorough review of the facts and pertinent law, we reverse and remand.
Procedural History
Plaintiff-appellee, M.K., father of B.K. (“Father”), initiated this
divorce proceeding against Mother in 2021. In addition to B.K., the parties have
another minor child who is not at issue in this appeal. The record demonstrates that
B.K. and Father had a contentious relationship and there were allegations that
Mother alienated the child from Father. A guardian ad litem (“GAL”) was appointed
for the children. The GAL filed his formal report in December 2022, ahead of the
scheduled January 2023 trial.
The trial began in early January 2023, and started with consideration
of a pending motion requesting that Mother be “blacked out” from having contact
with B.K. for a 90-day period. Father called Mother as if on cross-examination. The
following day, having only heard Mother’s testimony, the trial court issued the
judgment that is the subject of this appeal. The judgment, which states that it was
based on the trial court’s review of the GAL’s report, reads in pertinent part as
follows:
Upon the Court’s own motion, pursuant to Ohio Revised Code Section
3109.04(D)(2), to certify the record in this case to the Cuyahoga County
Juvenile Court, this Court makes the following findings[:]
1) The minor child, B.K.[,] * * * is subject to this Court’s jurisdiction[;]
2) Due to B.K.’s homicidal ideations towards his father, and mother[’]s
persistent parental alienation of B.K. from his father, both parents
are unsuitable to have the parental rights for the care of the minor
child and are unsuitable to provide the place of residence; and
3) Both parents are unsuitable to be designated Residential Parent and
Legal Custodian of the minor child B.K.
Trial court’s judgment entry (Jan. 5, 2023).
January 5, 2023 Judgment is a Final, Appealable Order
Mother has filed this interlocutory appeal from the January 5, 2023
judgment. Father has filed a motion to dismiss, in which he contends that the
judgment is not a final, appealable order. For the reasons set forth below, we find
that the judgment is a final, appealable order.
This court has jurisdiction over “final orders” of lower courts. Ohio
Constitution, Article IV, Section 3(B)(2). An appellate court can only review final,
appealable orders. What constitutes a “final, appealable order,” as applicable here,
is statutorily defined as “[a]n order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment [.]”
R.C. 2505.02(B).
A “special proceeding” is “an action or proceeding that is specially
created by statute and that prior to 1853 was not denoted as an action at law or a suit
in equity.” R.C. 2505.02(A)(2). Divorce actions are “special proceedings” within the
meaning of R.C. 2505.02. Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-
Ohio-2317, 950 N.E.2d 516, ¶ 6, citing State ex rel. Papp v. James, 69 Ohio St.3d
373, 379, 632 N.E.2d 889 (1994).
A “substantial right” is “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). A “substantial right” is essentially
a legal right that is enforced and protected by law. State v. Coffman, 91 Ohio St.3d
125, 127, 742 N.E.2d 644 (2001). Decisions involving the care and custody of a child
implicate substantial rights of the biological parents. State ex rel. V.K.B. v. Smith,
138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 16.
The case law is lacking on the particular final, appealable order issue
presented in this case. The specific issue being whether a domestic relations court’s
order of certification to a juvenile court the allocation of parental rights and
responsibilities of a child subject to a pending divorce proceeding (i.e., an order not
made pursuant to, or in tandem with, a final divorce decree) is a final, appealable
order.1 For the reasons discussed below, we find that it is.
Although the trial court’s judgment here did not explicitly grant
custody of the child to the Cuyahoga County Division of Children and Family
Services (“CCDCFS”), the practical effect of the trial court’s judgment was to divest
the parents of at least the care of B.K., if not the custody of the child as well. The
1
A final, appealable order exists as to a certification order when it occurs at the
conclusion of a divorce proceeding. See Robinson v. Robinson, 19 Ohio App.3d 323, 484
N.E.2d 710 (10th Dist.1984).
court found B.K.’s parents “unsuitable to have the parental rights for the care of the
minor child and * * * unsuitable to provide the place of residence.”
Further, under the statute invoked by the trial court for the
certification, R.C. 3109.04(D)(2), “upon the certification, the juvenile court has
exclusive jurisdiction.” Thus, Mother would not have the ability at the end of the
divorce proceeding to appeal the certification issue, because the domestic relations
court’s jurisdiction over issues relative to the issues regarding the allocation of
parental rights and responsibilities of B.K. would have long been nonexistent.
In re C.L.M., 8th Dist. Cuyahoga No. 99622, 2013-Ohio-4044, is also
instructive. In In re C.L.M., a juvenile was adjudicated delinquent and committed
to a youth facility for a minimum period of one year and a maximum period until his
21st birthday. After serving the minimum period of time, the juvenile was granted
supervised release and placed on the trial court’s re-entry docket. The juvenile was
placed in a group home and the department of youth services maintained legal
custody of him.
Shortly after the juvenile’s release, a complaint for a violation of the
terms of his supervised release was filed, and after a hearing it was determined that
he was in violation. The re-entry court found that the juvenile had not committed a
new offense whereby he could be committed to a youth services facility and therefore
the court issued an order granting emergency custody of the juvenile to the
Cuyahoga County Division of Children and Family Services (“CCDCFS”). CCDCFS
appealed.
This court found that the trial court’s order was a final, appealable
order.
[W]e conclude that a substantial right is affected in this case. Because
the emergency custody order affects a substantial right made in a
special proceeding, the order is final and appealable under
R.C. 2505.02(B)(2).
In re C.L.M., at ¶ 17.
This court reasoned that, “[i]n short, the order imposed custody on
CCDCFS where no custody previously existed, and required CCDCFS to fulfill a
multitude of statutory obligations.” Id. Similarly, here, the trial court’s order
imposed jurisdiction on the juvenile court where jurisdiction previously did not
exist.
In another instructive case, Covell v. Covell, 4th Dist. Pickaway
No. 17CA19, 2018-Ohio-3358, the Fourth District Court of Appeals held that a
judgment finding the parents of minor children unsuitable to parent and granting
temporary custody to a relative was a final, appealable order. The court reasoned
that “the trial court’s order met the requirements of R.C. 2505.02, by affecting a
substantial right in a special proceeding, and therefore constituted a final appealable
order.” Id. at ¶ 11, fn.3.
We recognize that it may be best practice to address all the issues in a
single divorce decree but, where, as in this case, the proceedings relate to the transfer
of parental rights and responsibilities to the juvenile court, the need for immediate
review outweighs the harm caused by piecemeal appeals. See Stackhouse v.
Stackhouse, 2d Dist. Montgomery No. 15710, 1996 Ohio App. LEXIS 4853, 3 (Nov.
8, 1996).
Based on the discussion above, we find that the trial court’s January
5, 2023 judgment in this case affects a substantial right in a special proceeding and
is a final, appealable order.
Assignments of Error
I. The Trial Court erred when it certified all issues to the Juvenile
Division pertaining to allocation of parental rights and
responsibility of B.K. without making a finding that it is in the
best interests of B.K.
II. The Trial Court erred when it held that both parents are
unsuitable to have the parental rights and to provide the place of
residence to B.K.
III. The trial court erred when it relied on the GAL’s Report in the
Judgment Entry.
Law and Analysis
We begin our analysis by acknowledging that it is well recognized that
the right to raise a child is an “‘essential’ and ‘basic’ civil right.” In re Hayes, 79 Ohio
St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Murray, 52 Ohio St.3d 155, 556
N.E.2d 1169 (1990). Moreover, a parent’s right to custody of his or her child is
“‘paramount.’” In re Hayes at id., quoting In re Perales, 52 Ohio St.2d 89, 97, 369
N.E.2d 1047 (1977). Because a parent has a fundamental liberty interest in the
custody of his or her child, this important legal right is “protected by law and, thus,
comes within the purview of a substantial right.” In re Murray at 157. Therefore,
parents “must be afforded every procedural and substantive protection the law
allows.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist. 1991).
Trial Court’s Findings Insufficient to Certify Case
Relevant to the instant case, R.C. 3109.04(D)(2) provides a domestic
relations court with the authority to certify a case to juvenile court. See Haynes v.
Haynes, 12th Dist. Warren No. CA2016-07-067, 2017-Ohio-2718, stating that “there
are a number of means by which a juvenile court may acquire jurisdiction over
parenting matters[,]” and thus, “[f]or R.C. 3109.04(D)(2) and 3109.06 to be given
full effect, they may only be interpreted as permitting distinct methods of
certification.” Id. at ¶ 13, ¶ 19.
R.C. 3109.04(D)(2), the provision on which the trial court’s judgment
was based, provides as follows:
If the court finds, with respect to any child under eighteen years of age,
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, it
may commit the child to a relative of the child or certify a copy of its
findings, together with as much of the record and the further
information, in narrative form or otherwise, that it considers necessary
or as the juvenile court requests, to the juvenile court for further
proceedings, and, upon the certification, the juvenile court has
exclusive jurisdiction.
Thus, under the plain language of R.C. 3109.04(D)(2), “[i]t must be
in the best interests of the children to issue a finding that neither parent is suitable
to have parental rights or be the custodial parent.” See v. See, 8th Dist. Cuyahoga
No. 77850, 2000 Ohio App. LEXIS 4784, 5 (Oct. 12, 2000). In her first assignment
of error, Mother contends that the trial court erred in certifying all issues relative to
the allocation of parental rights for B.K. to the juvenile court without making a
finding that it was in B.K.’s best interests.
In response, Father contends that the best-interest analysis only
comes into play after a finding of parental unsuitability and cites In re C.V.M., 8th
Dist. Cuyahoga No. 98340, 2012-Ohio-5514, and In re Perales, 52 Ohio St.2d 89,
369 N.E.2d 1047 (1977), in support of his contention. Father further contends that
Mother is “[q]uite frankly * * * parsing hairs by arguing that the January 5, 2023
Judgment Entry is erroneous for omitting specific reference to the term ‘best
interest.’”
Both In re C.V.M. and In re Perales deal with custody disputes that
arose from juvenile court proceedings, not domestic relations court, as is the case
here. In In re Perales, the mother-appellant contended that the best-interest test
provided in R.C. 3109.04 should have applied to her case in juvenile court. The
Supreme Court of Ohio noted the distinction between a custody dispute arising from
a juvenile court proceeding and one arising from a divorce proceeding, stating that
in a divorce proceeding “the welfare of the child would be the only consideration
before the court,” while in a juvenile court custody proceeding the “scope of inquiry
must, of necessity, be broader.” In re Perales at 96.
The domestic relations court invoked R.C. 3109.04(D)(2) as the basis
of the certification. That statute requires a best-interest determination, which the
trial court failed to make.
In her second assignment of error, Mother contends that the trial
court failed to make any one finding required for parental unsuitability. In order to
find parental unsuitability, the court must determine, by a preponderance of the
evidence, that the parent abandoned the child, contractually relinquished custody
of the child, has become totally incapable of supporting or caring for the child, or
that an award of custody to the parent would be detrimental to the child. Masitto v.
Masitto, 22 Ohio St.3d 63, 65, 488 N.E.2d 857 (1986); In re Perales at 98.
The trial court’s judgment finds Mother and Father unsuitable, but
fails to state that its finding is made by a preponderance of the evidence based on
one of the above-mentioned findings. Thus, because the trial court failed to make
either a best-interest determination or a proper unsuitability finding, we find the
first and second assignments of error well taken.
Because the trial court here did not make the appropriate finding
under the statute it invoked — R.C. 3109.04(D)(2) — we reverse and remand.
Trial Court’s Reliance on GAL’s Report
For her third assignment of error, Mother contends that the trial
court erred in relying on the GAL’s report in its judgment because: (1) the report
was not admitted as an exhibit in contravention of Sup.R. 48.06(2), (2) the parties
were not afforded an opportunity to cross-examine the GAL, and (3) “[t]he entire
admissibility of the report is problematic, as virtually all of the medical findings are
privileged and inadmissible.”
Initially, we note that the “rules of superintendence are merely
guidelines and do not have the force and effect of statutory law.” O’Malley v.
O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 56, citing In re D.C.J.,
2012-Ohio-4154, 976 N.E.2d 931, ¶ 48 (8th Dist.). “They are purely internal
housekeeping rules which are of concern to the judges of the several courts but
create no rights in individual defendants.” State v. Gettys, 49 Ohio App.2d 241, 243,
360 N.E.2d 735 (3d Dist.1976).
It is true that the report was not admitted into evidence. However,
the record demonstrates that counsel and the trial court were provided a copy of the
report on December 29, 2022, and thus, there was no violation of the parties’ due
process rights. Further, the trial court specifically stated that it was not attaching a
copy of the report to its judgment “to protect the rights of the parties and the minor
child from subsequent dissemination of privileged information received as a result
of medical releases,” which was appropriate. The report was filed under seal with
this court.
We do agree with Mother, however, that the trial court’s reliance on
the report without having had afforded the parties the opportunity to cross-examine
the GAL was an abuse of discretion. In In re Hoffman, 97 Ohio St.3d 92, 2002-
Ohio-5368, 776 N.E.2d 485, the Supreme Court of Ohio held that “[i]n a permanent
custody proceeding in which the guardian ad litem’s report will be a factor in the
trial court’s decision, parties to the proceeding have the right to cross-examine the
guardian ad litem concerning the contents of the report and the basis for a custody
recommendation.” Id. at syllabus.
At least one appellate district has held that Hoffman’s holding applies
in custody proceedings outside of the context of the termination of parental rights.
In Schill v. Schill, 11th Dist. Geauga No. 2002-G-2465, 2004-Ohio-5114, where a
child’s custody was at issue in a divorce proceeding, the Eleventh Appellate District
held that “the trial court’s consideration of the GAL’s findings, without providing the
parties opportunity to cross-examine the guardian, violated due process and was an
abuse of discretion.” Id. at ¶ 59; see also Allen v. Allen, 11th Dist. Trumbull
No. 2009-T-0070, 2010-Ohio-475, In re Gruber, 11th Dist. Trumbull No. 2007-T-
0001, 2007-Ohio-3188, and In re Seitz, 11th Dist. Trumbull No. 2002-T-0097,
2003-Ohio-5218.
Thus, Mother’s third assignment of error is well taken to the extent
that the trial court’s reliance on the GAL’s report without affording the parties an
opportunity to cross-examine the GAL was an abuse of discretion.
Judgment reversed; case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
MICHAEL JOHN RYAN, JUDGE
MARY J. BOYLE, J., CONCURS;
EILEEN T. GALLAGHER, P.J., DISSENTS (WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, P.J., DISSENTING:
Respectfully, I dissent from the majority’s determination that the trial
court’s January 5, 2023 judgment constitutes a final, appealable order. It is my
belief that because the trial court’s application of R.C. 3109.04(D)(2) was not
incorporated into a final divorce decree, the judgment did not satisfy the
requirements of R.C. 2505.02 on its own.
As stated by the majority, appellate courts have jurisdiction “to review
and affirm, modify, or reverse judgments or final orders.” Article IV, Section
3(B)(2), Ohio Constitution. R.C. 2505.02(B) sets forth several types of final,
appealable orders. The majority’s analysis involves the category defined in R.C.
2505.02(B)(2), which provides that an “order that affects a substantial right made
in a special proceeding” is a final, appealable order. The Ohio Supreme Court has
held that an order affects a substantial right for purposes of R.C. 2505.02(B)(2) only
if “in the absence of immediate review of the order [the appellant] will be denied
effective relief in the future.” Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616
N.E.2d 181 (1993).
Thus, to demonstrate that the trial court’s order transferring
jurisdiction to the juvenile court is a final, appealable order, Mother must show (1)
that the order was made in a special proceeding, (2) that the order affects a
substantial right, and (3) that she would not be able to effectively protect her
substantial right without immediate review. Thomasson v. Thomasson, 153 Ohio
St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 11.
In this case, there is no dispute that the trial court’s judgment was
made in the midst of a divorce action and was thereby made in a “special proceeding”
as contemplated under R.C. 2505.02(A)(2). I further recognize the well-established
principle that decisions involving the care and custody of a child implicate
substantial rights of the biological parents. With that stated, however, the trial
court’s January 5, 2023 judgment did not, either expressly or inherently, constitute
an order for emergency or permanent custody to either parent. Nor did the trial
court’s judgment designate a nonparent as the child’s temporary custodian. The
judgment was limited to an application of R.C. 3109.04(D)(2) and the court’s
determination that it was necessary to transfer the matter to the juvenile court for
further proceedings relating to the best interests of B.K. Although the statute
required the court to consider the best interests of the child, the trial court did not
render a final judgment concerning the allocation of Mother and Father’s parental
rights and responsibilities.
In the absence of a final divorce decree, this appeal concerns a section
of R.C. 3109.04 that contemplates jurisdiction and does not determine the action or
otherwise constitute a final determination concerning the appropriate placement of
a child. In my view, the court’s judgment is more analogous to a transfer of venue
or bindover proceedings, the judgments of which are merely procedural and do not
constitute final, appealable orders. See, e.g., Farshchian v. Glenridge Machine Co.,
8th Dist. Cuyahoga No. 91821, 2009-Ohio-1602, ¶ 10 (“[W]e find that the transfer
of jurisdiction in this case does not determine the action and prevent a judgment
because it is procedural; it does not decide any claim.”); In re D.H., 152 Ohio St.3d
310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 12-13 (a bindover proceeding in juvenile court
is a provisional remedy).
While the majority decision appears to take issue with the court’s
adoption of the GAL’s recommendation to restrict the parents’ access to the child
until certain conditions are fulfilled, that judgment is not before this court. The
resolution of the parties’ parental rights and responsibilities will be determined by
the juvenile court at a later date. Although the majority correctly states that Mother
and Father may not have the opportunity to effectively appeal the certification issue
at the end of the divorce proceedings, the parties will have the opportunity to
effectively protect their substantial rights as B.K.’s biological parents once a final,
appealable custody order is issued by the court of jurisdiction. Similarly, Mother
has not presented any caselaw to suggest that she would be prevented from
challenging the trial court’s application of R.C. 3109.04(D)(2) once the juvenile
court issues a final, appealable order.
Based on the foregoing, I am therefore unpersuaded by the majority’s
conclusion that the trial court’s judgment affected a substantial right in a special
proceeding. Accordingly, I would dismiss this appeal for lack of a final, appealable
order.