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In re V.M.B.

Court of Appeals of Ohio, Eleventh District

September 30, 2013

IN THE MATTER OF: V.M.B.

Civil Appeal from the Portage County Court of Common Pleas, Juvenile Division. Case No. 2006 JCG 00501

Joy S. Wagner, (For Appellant Mindy Bilby).

David P. Drew, (For Appellee Lisa Marie Bilby).

OPINION

TIMOTHY P. CANNON, P.J.

(¶1} Appellant, Mindy Bilby ("Aunt"), appeals from the August 10, 2012 judgment of the Portage County Court of Common Pleas, Juvenile Division, which overruled her objection to the magistrate's decision and ordered that she return custody of V.M.B. ("minor child") to appellee, Lisa Marie Bilby ("Mother"), the biological mother.

(¶2} The minor child was born on July 28, 2005. Paternity has not been established.

(¶3} On June 1, 2006, Frank Bilby ("Uncle") and Aunt filed a petition for custody alleging Mother was unable to care for her daughter. Mother filed an answer consenting to the grant of the petition and the award of legal custody of her daughter to Aunt and Uncle.

(¶4} A hearing was held before the magistrate on July 7, 2006. Aunt and Uncle appeared for the hearing; Mother did not attend. At the hearing, the magistrate instructed the following:

(¶5} THE COURT: Folks, we have you in here so that you, we want to make sure you understand what this is all about and both what you're getting into and what you're not getting into.

(¶6} This is a request for custody placing [the minor child] in your legal custody. It does not in any way affect the parental rights of [Mother] and, in fact, when we grant these motions for custody, it's done purely for the convenience of the parties. It's undoable on a moment's notice. In other words if she says I want my child back and comes back to court and says I want my child back, we will immediately return legal custody to her. This is not the type of case that sets up any hurdles or burdens for her to overcome in order to get her child back. Again, it's just done for the assumption it's for the convenience of the parties meaning yourself and her. And, if she changes her mind and she's immediately entitled to do that and to seek the return of legal custody. Just so we understand that. Okay.

(¶7} * * * You don't have permanent parental rights and, again, you don't take on any of [Mother's]. She retains those. Do you understand that?

(¶8} [AUNT]: Yes.

(¶9} THE COURT: Any questions about that?

(¶10} [AUNT]: No.

(¶11} * * *

(¶12} THE COURT: Well, the court's going to grant your petition. We'll place the child in your legal custody. * * * Like I said, in the event that [Mother] wishes to seek return of custody, you'll come back to court and we'll immediately grant it to her. Just so you know that. *

(¶13} [UNCLE]: The one other question I have is: Down the road at what point in time are we able to try to seek permanent custody? * * *

(¶14} THE COURT: You can't. The only entity that will seek permanent custody is children's service agencies such as Portage County Department of Job and Family Services. Permanent custody has a very specific meaning in Ohio's law and it gets kind of confused in a lot of discussions with what it is and what it isn't. It's only something that can go to the department. It means that a person loses all parental rights when a child's service agency, the Department of Job and Family Services would take permanent custody. Other people can adopt a child. Adoption is an entirely different process where she might be willing to give up her parental rights and allow the child to be adopted. That's not what this is about. This does not automatically lead into something like that. So, the fact that of the status we've given you in this case as legal custodians that's like the maximum that we could do in this court. All right. Okay.

(¶15} [UNCLE]: Thank you very much.

(¶16} [AUNT]: Thank you.

(¶17} The magistrate issued a decision finding that the parties agreed that the change of custody was in the best interest of the child; "that it is for the convenience of the parties; and that it is subject to the ongoing jurisdiction of the court." The magistrate did not make a finding regarding the suitability of ...


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