In re K.G. , 2022 Ohio 3218 ( 2022 )

[Cite as In re K.G., 2022-Ohio-3218.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: K.G. C.A. No. 30221
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 18-05-000483
DECISION AND JOURNAL ENTRY
Dated: September 14, 2022
CARR, Judge.
{¶1} Appellant A.D. (“Grandmother”) appeals the judgment of the Summit County
Court of Common Pleas, Juvenile Division. This Court reverses and remands the matter for
proceedings consistent with this decision.
I.
{¶2} Much of the history of this case was summarized in a prior appeal:
Mother and Father are the biological parents of K.G. (d.o.b. 3/12/16). Grandmother
and Grandfather are the paternal grandparents of the child. Grandmother and
Grandfather were married and divorced many years ago, and each has remarried.
The grandparents, along with their spouses, have homes in California, where they
reside approximately 30 minutes away from each other.
Summit County Children Services Board (“CSB” or “the agency”) removed the
then two-year-old K.G. from Mother’s and Father’s care based on concerns that
they were unemployed, about to be evicted, and had admitted to using
methamphetamines in the presence of the child. Although CSB alleged that the
child was abused, neglected, and dependent, the agency dismissed the allegations
of abuse and neglect when the parents stipulated to the child’s dependency. Mother
and Father further agreed that it was in the best interest of the child to place him in
the temporary custody of CSB. Shortly thereafter, with agreement of the parties,
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K.G. was placed in the temporary custody of kinship caregivers who resided in
Summit County, Ohio. CSB maintained protective supervision of the child.
As part of its efforts to find a safe and permanent placement for the child, CSB then
initiated Interstate Compact for the Placement of Children (“ICPC”) assessments
for both Grandmother and Grandfather in California. Ten months into the case,
CSB moved for a first six-month extension of temporary custody to the kinship
caregivers. Although Mother and Father were noncompliant with their case plan
objectives, the ICPC assessments for both Grandmother and Grandfather were
expected to be completed soon. In the meantime, both grandparents were granted
leave to intervene as parties in the case. Grandmother and Grandfather each filed
a motion for legal custody of the child. At the time of the sunset hearing,
Grandfather had been approved for placement, while Grandmother's assessment
remained pending. The juvenile court ordered a six-month extension of temporary
custody to the kinship caregivers with protective supervision by CSB. In addition,
the court granted Grandfather’s motion for extended visitation with the child.
CSB filed a notice that the agency and Grandfather agreed that K.G. would spend
the entire month of July 2019, with Grandfather in California. During that time,
Grandfather was required to allow Grandmother visitation with the child without
restrictions as to frequency, duration, and location, except that Grandmother could
not have overnight visitations during that time. After Grandmother’s ICPC
assessment was approved in August 2019, she too was granted an extended
visitation with the child in California, spanning three weeks in September and
October 2019. Grandmother was required to allow Grandfather to visit with the
child during that time. During both periods of extended visitation in California,
each grandparent was required to facilitate contact between the child and his
parents.
After Grandfather’s extended visitation, but before Grandmother’s, CSB filed a
motion to modify the child’s disposition from temporary custody to kinship
caregivers to legal custody to a relative, specifically Grandfather. Grandmother
and Grandfather each maintained their respective motions for legal custody. Each
grandparent submitted a statement of understanding for legal custody.
At the final dispositional hearing, CSB orally withdrew its motion for legal custody
to Grandfather. Instead, the assistant prosecutor asserted that the agency was not
opposed to an award of legal custody to either grandparent, as each had been
approved via ICPC assessment and their respective extended visitations went well.
The guardian ad litem also remained neutral and recommended an award of legal
custody to either grandparent, with a standard order of visitation for the other. She
further recommended that Mother and Father have a minimum of two hours, twice
a week, of supervised phone, video, or in-person visitation with the child.
After a hearing, the magistrate recommended granting Grandfather’s motion for
legal custody, giving Grandmother visitation two weekends per month, and
allowing limited supervised visitation for Mother and Father. The juvenile court
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adopted the magistrate’s decision the same day and ordered the case closed. Both
Mother and Grandmother filed timely objections. Grandfather moved to lift the
automatic stay imposed based on the pending objections and for placement of K.G.
with him in the interim in the interest of stability and permanency for the child,
given that both viable legal custodians resided in California. The juvenile court
initially denied the motion to lift the stay, but later granted it and ordered K.G. to
be placed in California where he would spend alternating two-week periods with
Grandfather and Grandmother pending the resolution of the objections and any
appeals.
The juvenile court subsequently overruled Mother’s and Grandmother’s objections.
It awarded legal custody to Grandfather, as well as visitation for Grandmother,
Mother, and Father.
In re K.G., 9th Dist. Summit No. 29668, 2020-Ohio-4117, ¶ 2-9. Grandmother appealed, and this
Court affirmed the judgment. Id. at ¶ 1.
{¶3} In September 2020, Grandmother filed a motion to modify companionship time
with K.G. Grandfather filed a motion to strike or dismiss Grandmother’s motion. On December
23, 2020, the magistrate issued an entry which indicated in item number six that Grandfather and
Grandmother agreed that Grandmother would have companionship time with K.G. the second and
fourth weekend of every month from Friday at 6:00 p.m. until Sunday at 4:00 p.m. or as otherwise
agreed and that Grandmother would have a phone call with the child every Wednesday at 6:00
p.m. That same day the trial court adopted the magistrate’s entry.
{¶4} On June 25, 2021, Grandmother filed another motion to modify companionship
time, this time seeking extended vacation time with K.G. Grandfather filed a motion to strike or
dismiss Grandmother’s motion. Grandfather argued Grandmother’s motion was barred by res
judicata and that she failed to demonstrate a change of circumstances.
{¶5} A hearing was held, and the magistrate issued a decision on September 30, 2021.
The magistrate concluded:
Upon review of the record, the Court finds this matter must be resolved as [a] matter
of law. Order number 6 of the Court’s decision issued December 23, 2020, clearly
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indicates that the Court’s order regarding paternal grandmother’s parenting time
was based upon an agreement reached between paternal grandfather, the child’s
legal custodian, and paternal grandmother. Paternal grandfather and paternal
grandmother no longer agree and paternal grandmother testified that she was never
in agreement with “agreement” reached and outlined in the Court’s December 23,
2020 Decision. Under Ohio law, a grandparent has no legal right to companionship
time with a child who was born to legally married, living parents. [See] In re M.N.,
9th Dist. Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 20. The only rights provided
to a nonparent are set forth in R.C.[]3109.051(B), []3109.11, and []3109.12. This
child was born to legally married parents and neither parent is deceased. Therefore,
since paternal grandmother has no legal right to companionship time with the child,
the order issued on December 23, 2020 is unenforceable. Thus, the order issued on
December 23, 2020, having been made in error, shall be vacated. Paternal
grandmother shall be removed as a party to this action.
The trial court adopted the magistrate’s decision the same day.
{¶6} Grandmother filed objections to the magistrate’s decision arguing, inter alia, that it
was error to deny grandmother’s motion, remove her as a party, and vacate the December 23, 2020
order.
{¶7} On January 3, 2022, the trial court issued a judgment entry ruling on the objections.
The trial court concluded that Grandmother should be removed as a party because “there was no
longer a basis for Grandmother to be a party to th[e] matter.” The trial court then went on to
address Grandmother’s visitation with K.G. It stated:
When the Magistrate awarded Paternal Grandfather legal custody of [K.G.] on
October 23, 2019, the Magistrate also awarded Paternal Grandmother visitation
with [K.G.] As this was a dispositional order, the Magistrate did not have the
authority to issue this visitation order. R.C. 2151.353 does not provide for non-
parent (or grandparent) visitation as it does for parental visitation. Because the
Magistrate did not have the authority to issue this dispositional order, all subsequent
references or modifications of Paternal Grandmother’s visitation order are
unenforceable.
***
Since the Magistrate did not have the authority to issue the October 23, 2019 order
awarding Paternal Grandmother visitation, that order is unenforceable.
Consequently, neither Paternal Grandmother’s September 17, 2020 Motion to
Modify Companionship Time nor Paternal Grandmother’s June 25, 2021 Motion
to Modify Companionship Time should have been heard by the Magistrate.
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Therefore, the Magistrate’s denial of Paternal Grandmother’s Motion for
Modification of Companionship Time is moot.
{¶8} The trial court then ordered that “[t]he Magistrate’s previous orders regarding
Paternal Grandmother’s visitation/companionship time with [K.G.] are stricken * * *.”
{¶9} Grandmother has appealed the trial court’s ruling, raising six assignments of error,
which will be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN VACATING THE DECEMBER 23, 2020[]
ORDER AND THE SUBSEQUENT MODIFICATION SUA SPONTE WHEN,
EVEN ASSUMING AN ERROR EN ARGUENDO, AS THE ORDER WAS NOT
VOID AB INITIO AND NO PARTY HAS MADE A REQUEST THAT IT BE
VACATED.
{¶10} Grandmother argues in her fourth assignment of error that the trial court erred in
vacating certain orders as void.
{¶11} Here, it appears that the trial court believed that it lacked subject matter jurisdiction
to enter the October 23, 2019 order granting Grandmother visitation with K.G. and thus its
subsequent orders related to Grandmother’s visitation with K.G. were also void. As the trial
court’s premise is incorrect, we agree that the trial court erred.
{¶12} “The juvenile court’s determination regarding its subject matter jurisdiction
implicates a question of law which this Court reviews de novo.” In re J.L.M., 9th Dist. Summit
No. 28867, 2018-Ohio-2175, ¶ 9. “A juvenile court may exercise jurisdiction only if expressly
granted the authority to do so by statute.” (Citations omitted.) Id.CSB initiated the underlying case pursuant to Revised Code Section 2151.23(A)(1),
when it filed its complaint[] alleging that the child[] w[as] abused, neglected, and/or
dependent. The Ohio Supreme Court has clarified that the juvenile court operates
pursuant to its exclusive original jurisdiction when it holds an adjudicatory hearing,
and, if it adjudicates the child abused, neglected, or dependent, when it issues its
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initial dispositional order pursuant to Revised Code Section 2151.353(A). State ex
rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, 150 Ohio
St.3d 230, 2016-Ohio-7382, ¶ 21. Those dispositions include protective
supervision, temporary custody, legal custody, permanent custody, planned
permanent living arrangement, and removing the child from the home and issuing
a no contact order. R.C. 2151.353(A)(1)-(6). Thereafter, the juvenile court’s
exclusive jurisdiction terminates and it continues to address ongoing issues in the
case pursuant to its exercise of “continuing jurisdiction over the child.” State ex
rel. Allen Cty. Children Servs. Bd. at ¶ 23. Furthermore, Revised Code Section
2151.353(F)(1) provides in relevant part: “The [juvenile] court shall retain
jurisdiction over any child for whom the court issues an order of disposition
pursuant to division (A) of this section * * * until the child attains the age of
eighteen years * * *.” Only age or adoption terminates the continuing jurisdiction
of the juvenile court. Id.In re J.L.M. at ¶ 10; see also In re Z.R., 144 Ohio St.3d 380, 2015-Ohio-3306, ¶ 16 (“It is
undisputed that all Ohio juvenile courts have subject-matter jurisdiction over dependency cases.”);
In re M.R.L., 9th Dist. Summit No. 25618, 2011-Ohio-4997, ¶ 9 (“This case, involving the
disposition of M.R.L. following his adjudication as a neglected child, falls squarely within the
subject matter jurisdiction of the juvenile court as delineated in R.C. 2151.23(A)(1).”).
{¶13} “Once a tribunal has jurisdiction over both the subject matter of an action and the
parties to it, * * * the right to hear and determine is perfect; and the decision of every question
thereafter arising is but the exercise of the jurisdiction thus conferred * * *.” (Internal quotations
and citations omitted.) Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, ¶ 13. “[A]ny
irregularity in the juvenile court’s exercise of its valid subject matter jurisdiction [] render[s] the
dispositional order voidable” and subject to challenge on direct appeal. In re M.R.L. at ¶ 9.
{¶14} Thus, the trial court possessed subject matter jurisdiction to enter the October 23,
2019 order. That entry is accordingly not void. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d
75, 2014-Ohio-4275, ¶ 19 (“If a court possesses subject-matter jurisdiction, any error in the
invocation or exercise of jurisdiction over a particular case causes a judgment to be voidable rather
than void.”). Given that the order was not void, there was no basis for the trial court to vacate it.
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“Moreover, a trial court lacks authority to vacate a judgment that has been affirmed on appeal.”
In re M.H., 6th Dist. Lucas No. L-18-1012, 2018-Ohio-3817, ¶ 15. The October 23, 2019 entry
was also the subject of the original appeal in this matter, and the trial court’s decision was affirmed
on appeal. See In re K.G., 2020-Ohio-4117, at ¶ 1. Based on the foregoing, we conclude the trial
court lacked the authority to vacate and/or strike the October 23, 2019 entry. Further, because its
decision to vacate the subsequent orders related to Grandmother’s visitation was based upon its
conclusion that the October 23, 2019 entry was void, and that conclusion was erroneous, we
likewise conclude it erred in vacating subsequent orders related to Grandmother’s visitation.
{¶15} Grandmother’s fourth assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
REMOVING PATERNAL GRANDMOTHER AS A PARTY.
{¶16} Grandmother argues in her second assignment of error that the trial court erred in
removing Grandmother as a party. Based upon the circumstances of this case, we agree.
{¶17} “Civ.R. 24 allows parties to join in an action when they have a legal interest or right
in the proceeding. The Rules of Civil Procedure further empower trial courts to remove parties
upon ‘motion of any party or of its own initiative at any stage of the action and on such terms as
are just.’ Civ.R. 21.” In re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, ¶ 11. “[W]hile a court
does not abuse its discretion in removing grandparents as parties when they are no longer necessary
under Juv.R. 2(Y) and when the grandparents have no independent legal interest in the case, the
court may exercise its discretion and allow them to remain, if circumstances warrant it and it is
just to do so.” Id. at ¶ 14.
{¶18} Based upon the language of the trial court’s judgment entry, it appears that the trial
court removed Grandmother as a party based upon its mistaken impression that its original entry
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regarding Grandmother’s visitation was void and unenforceable. As we have concluded above
that that entry was not void, the trial court’s basis for removing Grandmother as a party is also not
supported by the record.
{¶19} Grandmother’s second assignment of error is sustained.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT THE DECEMBER 23, 2020[
ENTRY] WAS MADE IN ERROR AND THUS SHOULD BE VACATED.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN REMOVING PATERNAL GRANDMOTHER
AS A PARTY WHEN, EVEN WHEN VACATING THE DECEMBER 23, 2020[]
ORDER, ORDERS EXIST REGARDING HER COMPANIONSHIP TIME.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PATERNAL
GRANDMOTHER’S MOTION FOR MODIFICATION OF COMPANIONSHIP
TIME.
ASSIGNMENT OF ERROR VI
THE MAGISTRATE’S DECISION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶20} Based upon this Court’s resolution of Grandmother’s second and fourth
assignments of error, her remaining assignments of error have either been rendered moot or are
not properly before this Court at this time. Upon remand, the trial court must consider
Grandmother’s motion in light of this Court’s decision.
III.
{¶21} Grandmother’s second and fourth assignments of error are sustained. The
remaining assignments of error are either moot or not properly before the Court at this time. The
judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed, and the
matter is remanded for proceedings consistent with this decision.
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Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
ROBERT C. ALDRIDGE, Attorney at Law, for Appellant.
CORINNE HOOVER SIX and TAD ORVAL HOOVER, Attorneys at Law, for Appellee.
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SHUBHRA AGARWAL, Guardian ad Litem.