Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE A.M.S. ET AL. Minor Children [Appeal by R.C.B., Father]
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case Nos. CU17115124, CU 17115125, and CU
Rosenthal Thurman, L.L.C., and Scott S. Rosenthal, for
V. Heutsche Co. L.PA., and John V. Heutsche, for appellee.
JOURNAL ENTRY AND OPINION
LASTER MAYS, PRESIDING JUDGE.
1} Appellant R.C.B. is the nonbiological father of
three minor children: A.M.S., and twins A.W.S. and A.M.S.
Appellee B A.S. is the biological mother. On October 5, 2017,
appellant filed a complaint to establish companionship time
and/or visitation rights with the children in the Cuyahoga
County Court of Common Pleas, Juvenile Division. Appellee
filed a motion to dismiss the complaint for lack of subject
matter jurisdiction that was granted by the trial court.
Background and Facts
2} Appellant and appellee married in Cuyahoga
County, Ohio, on October 22, 2011, and divorced in Cuyahoga
County, Ohio, on May 15, 2018. Appellee's complaint for
divorce stated that no children were born as issue of the
marriage because the children were conceived through
reproductive donor specimens. Appellant answered that
appellee was not the biological parent due to the conception
method and that he was entitled to visitation because he had
established a parent-child relationship with the children
over the past ten years.
At the time the complaint in this case was filed, the divorce
proceedings were still in process. Appellee moved the
domestic relations court for a temporary restraining order
that prohibited appellant from holding himself out as the
parent of the children. Appellee argued that she is the
natural mother and guardian of the children through
artificial insemination documented by the Ohio issued birth
certificates. The court granted the motion and declined
jurisdiction over the visitation matter.
4} At the January 12, 2018 juvenile court
preliminary hearing, appellee advised that a motion to
dismiss for lack of jurisdiction would be forthcoming. An
attorney conference was scheduled for April 18, 2018, to
discuss the dismissal. The motion was filed, fully briefed,
and argued at the attorney conference as noted in the April
23, 2018 magistrate's decision that dismissed the
5} On May 7, 2018, appellant objected to the
magistrate's decision. On June 14, 2018, appellant filed
supplemental objections. On July 5, 2018, the trial court
overruled the objections and adopted the magistrate's
decision. Appellant timely appeals.
Assignments of Error
6} Appellant poses two assignments of error.
I. The trial court erred and abused its discretion when it
determined that the court did not have jurisdiction to hear a
verified complaint to establish companionship time filed by
father on October 5, 2017.
II. The trial court erred and abused its discretion when it
dismissed father's verified complaint to establish
companionship time without holding an evidentiary hearing.
Subject Matter Jurisdiction
7} We begin with the first assigned error. We find
that the assigned error lacks merit.
Standard of Review
8} The issue of subject matter jurisdiction is a
question of law that we review de novo. In re
S.K.L., 2016-Ohio-2826, 64 N.E.3d 413, ¶ 13 (8th
Dist.); Bank of Am. v. Macho, 8th Dist. Cuyahoga No.
96124, 2011-Ohio-5495, ¶ 7; and Crestmont Cleveland
Partnership v. Ohio Dept of Health, 139 Ohio App.3d 928,
936, 746 N.E.2d 222 (10th Dist.2000).
9} Appellant began his relationship with appellee in
June 2008, one year after the birth of appellee's eldest
child. The twins were born in 2009, and the parties married
in 2011. Appellant states that he has served in the role of
father to the children since their births with appellee's
encouragement. Appellant also offers that his extensive
history with the children is not a matter of record because
there was no evidentiary hearing on the matter in the
juvenile court. Appellant filed the complaint in the instant
action because appellee refused to waive jurisdiction over
the visitation matter in the domestic relations court.
10} Appellee argues that the action was properly
dismissed because appellant did not attempt to adopt the
children during the marriage and appellant concedes that he
is not the legal father of the children. Appellee also claims
that the domestic relations court had already determined that
appellant had no rights to the children.
11} Appellee asserts that appellant's reliance
on R.C. 3109.051 in a juvenile court complaint is misplaced
because the statute only applies to "divorce,
dissolution of marriage, legal separation, annulment, or
child support proceedings." R.C. 3109.051(B)(1). In
fact, appellee claims that there is no statutory authority
for the relief that appellant seeks because: (1) R.C.
2151.23(A)(2) did not apply because "these children were
wards of another court"; (2) R.C. 3109.11 governs
visitation if the mother is deceased; and (3) R.C. 3109.12
governs parenting time involving an unmarried mother.
Appellant replied that appellee's interpretation of R.C.
3109.051(B)(1) is incorrect.
12} The magistrate determined:
[C]ustody filings in Juvenile Court can only be brought under
R.C. [Chapter] 3109 or R.C. 2151.23. [Chapter] 3109 only
refers to parents being able to apply for custody, but there
are provisions for companionship being granted to
grandparents in situations where there is a divorce, a death
of a parent, or if the parents are unmarried. See
R.C. 3109.11 and R.C. 3109.051.
The Revised Code also allows jurisdiction for the Juvenile
Court to determine custody in R.C. 2151.23(A)(2): "The
juvenile court has exclusive jurisdiction under the Revised
Code * * * to determine the custody of any child not a ward
of another court of this state." A Juvenile Court has
original jurisdiction to determine the custody of a child
under this section, but the Court shall exercise its
jurisdiction in child custody matters in accordance with R.C.
3109.04. See R.C. 2151.23(F)(1), In re
Bonfield, 97 Ohio St.3d, 387, 2002-Ohio-6660. However,
the Ohio Supreme Court has determined that R.C. 2151.23(A)(2)
cannot be used to determine visitation or companionship time
for a child. The complaint of a non-parent seeking visitation
or companionship time with a child "may not be
determined by the juvenile court pursuant to its authority to
determine the 'custody' of children under R.C.
2151.23(A)(2)." In re Gibson, 61 Ohio St.3d
168, 172; 573 N.E.2d 1074, 1077 (1991).
The Cuyahoga County Common Pleas court, Domestic Relations
Division, has declined to take jurisdiction of the [children]
in this case. As the Domestic Relations Court has no
jurisdiction and no other information has been presented to
indicate that there is another Court that has a claim to the
child, the child is not a ward of another Court in this
state. The original filing in this case was a Complaint to
Establish Companionship time, filed on October 5, 2017. Since
the appellant is not a parent or relative under R.C. 3109.04,
and there is no application to determine custody pending