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In re A.M.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 8, 2019

IN RE A.M.S. ET AL. Minor Children [Appeal by R.C.B., Father]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. CU17115124, CU 17115125, and CU 17115126


          Rosenthal Thurman, L.L.C., and Scott S. Rosenthal, for appellant.

          John V. Heutsche Co. L.PA., and John V. Heutsche, for appellee.



         {¶ 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. Appellant appeals.

         I. 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.

         {¶3} 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 complaint.

         {¶ 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.

         II. 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.

         III. Discussion

         A. Subject Matter Jurisdiction

         {¶ 7} We begin with the first assigned error. We find that the assigned error lacks merit.

         1. 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).

         2. Analysis

         {¶ 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";[1] (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 ...

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