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In re N.M.

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 6, 2017

IN RE: N.M. A MINOR CHILD [Appeal by: J.H.M., Grandfather]

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 16109553

          ATTORNEY FOR APPELLANT Michael B. Telep

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Willie Mitchell Joseph C. Young Assistant Prosecuting Attorneys

          GUARDIAN AD LITEM / ATTORNEY FOR N.M. Susan Jankite

          ATTORNEY FOR FATHER, J.A.M. Daniel J. Bartos Bartos & Bartos, L.P.A.

          BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, PRESIDING JUDGE

         {¶1} Appellant J.H.M., the paternal grandfather of N.M. (the "grandfather"), appeals from the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division (the "juvenile court"), dismissing his complaint for visitation with prejudice on the ground that N.M. was "under the jurisdiction of another court" due to a pending dependency action. For the reasons that follow, we reverse the decision of the juvenile court and remand the matter for further proceedings.

         Factual and Procedural Background

         {¶2} N.M. was born in 2010. Her mother, S.M., who is now deceased, was not married at the time of her birth. Her father, J.A.M., acknowledged paternity of N.M. and that acknowledgment became final. On June 17, 2016, the grandfather filed a complaint for reasonable companionship or visitation rights with N.M. pursuant to R.C. 3109.12 ("complaint for visitation" or "visitation action"). At the time the grandfather filed his complaint, N.M. was the subject of a dependency action pending with the juvenile court.

         The Dependency Action

         {¶3} In December 2014, the Cuyahoga County Division of Children and Family Services ("CCDCFS") filed a complaint for dependency and emergency temporary custody relating to N.M. with the juvenile court (Case No. AD 14915620-21) (the "dependency action"). On January 25, 2015, N.M. was committed to the emergency custody of CCDCFS. In March 2015, after N.M.'s parents stipulated to an adjudication of dependency, CCDCFS was awarded temporary custody of N.M. In November 2015, CCDCFS filed a motion to modify temporary custody to permanent custody.

         {¶4} Throughout the course of the dependency action, the grandfather filed various motions to intervene in the dependency action and for custody of N.M.[1] These motions were either denied or not ruled upon by the juvenile court. After the juvenile court summarily denied his third motion to intervene on April 22, 2016, the grandfather appealed the ruling to this court. In December 2016, this court reversed the juvenile court's decision, concluding that the trial court abused its discretion in denying the grandfather's motion to intervene without a hearing, and remanded the case for further proceedings. In re N.M., 8th Dist. Cuyahoga No. 104498, 2016-Ohio-7967, ¶ 21-22.

         Motion to Dismiss the Grandfather's Complaint for Visitation

         {¶5} On July 27, 2016, CCDCFS filed a motion to dismiss the grandfather's complaint for visitation on jurisdictional grounds, arguing (1) that "the juvenile court, pursuant to [the dependency action], has exclusive jurisdiction of the child" and (2) given that the grandfather had appealed the denial of his third motion to intervene in the dependency action, the juvenile court was without jurisdiction to issue any orders relating to N.M. until the appeal was resolved.[2] CCDCFS also contended that the grandfather's complaint for visitation should be dismissed on res judicata grounds. CCDCFS argued that if the grandfather had wanted visitation with N.M., he should have raised the issue when he first moved to intervene in, and sought legal custody of N.M. in, the dependency action. It maintained that based on the juvenile court's denials of his motions to intervene in the dependency action, he was barred by res judicata from asserting a claim for visitation.

         {¶6} Eight days later, the magistrate issued a decision granting CCDCFS's motion and dismissing the complaint with prejudice. The magistrate stated that "for good cause shown, said Motion is granted" and that "[the parties may refer to case number AD14915620 for further proceedings."

         {¶7} On August 10, 2016 - after the magistrate issued her decision granting the motion - the grandfather filed his opposition to the motion to dismiss, arguing that custody and visitation are distinct legal concepts and that the pendency of the dependency action did not foreclose the juvenile court from exercising jurisdiction over his complaint for visitation under R.C. 3109.12. The grandfather further argued that res judicata did not preclude his visitation action because he had not filed a prior visitation action and could not have petitioned for visitation in the dependency action because he was not a party to that case.

         {¶8} On August 16, 2016, the grandfather filed objections to the magistrate's decision, incorporating his August 10, 2016 opposition to the motion to dismiss. The grandfather objected to the magistrate ruling on the motion before the time had run - based on his interpretation of the rules - for him to file a response. The grandfather also addressed CCDCFS's jurisdictional and res judicata arguments. The grandfather argued that he was properly exercising his statutory right to seek visitation under R.C. 3109.12, that the juvenile court had both subject matter jurisdiction and personal jurisdiction in the case and that the complaint should not be dismissed on res judicata grounds because his right to visitation had not been previously adjudicated and res judicata is an affirmative defense that cannot be decided on a motion to dismiss.

         {¶9} The juvenile court overruled the grandfather's objections and affirmed, approved and adopted the magistrate's decision "as amended by [the juvenile] court." In its judgment entry adopting the magistrate's decision, the trial court indicated that "the motion is well taken as the child is under the jurisdiction of another court. See case number AD14915620."[3] The juvenile court dismissed the grandfather's complaint with prejudice and granted him "[leave ...


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