[Cite as O'Conner v. Stires, 2017-Ohio-8929.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
REGINA O'CONNER, et al., :
CASE NO. CA2017-04-008
Plaintiffs-Appellees, :
OPINION
: 12/11/2017
- vs -
:
JASON STIRES, :
Defendant-Appellant. :
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. AD20110034
Mark J. Pitstick, 224 North Fayette Street, Washington C.H., Ohio 43160, for plaintiff-
appellee
Melissa S. Upthegrove, 254 East Court Street, Washington C.H., Ohio 43160, for
defendant-appellant
Judkins & Hayes, John W. Judkins, 303 West Jefferson Street, P.O. Box 33, Greenfield,
Ohio 43160, for appellee, Teresa Chaffin
Jess C. Weade, Fayette County Courthouse, 110 East Court Street, Washington C.H., Ohio
43160, for appellee Fayette County Department of Job & Family Services
Kristina Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, Guardian Ad Litem
M. POWELL, J.
{¶ 1} Appellant, Jason Stires ("Father"), appeals a decision of the Fayette County
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Court of Common Pleas, Juvenile Division, granting legal custody of his daughter, J.S., to
the child's maternal grandmother, Teresa Chaffin ("Grandmother").1
{¶ 2} Regina O'Conner ("Mother") and Father are the unmarried parents of J.S.,
who was born in September 2010. The parties lived together from late 2009 to early 2013.
Following the parties' separation, J.S. remained with Mother. The parties' testimony
indicates that sometime in 2013, Father was granted standard parenting time with J.S. by
court order.
{¶ 3} In July 2016, Mother was arrested and charged with several criminal offenses.
J.S. was released to Grandmother. Upon release from jail, Mother entered into a safety
plan with the Fayette County Department of Job & Family Services ("the Agency"). Under
the safety plan, J.S. was to stay with Grandmother and Mother was to have supervised
visitation.
{¶ 4} On July 21, 2016, Father moved for emergency custody. That same day, the
juvenile court denied Father's motion for emergency custody, ostensibly construed Father's
motion as a motion for custody, and scheduled a hearing for August 4, 2016. By judgment
entry filed on August 5, 2016, the juvenile court granted temporary custody of J.S. to the
Agency, noting the lack of evidence presented at the hearing, Mother's unresolved pending
criminal charges, and the fact J.S. had been placed with Grandmother pursuant to the safety
plan. Upon receiving temporary custody of J.S., the Agency placed the child with
Grandmother. The safety plan was terminated. Father's parenting time with J.S. was
increased.
{¶ 5} Subsequently, Grandmother moved for custody of J.S. In turn, Father filed a
motion to modify parental rights and responsibilities, seeking custody. The juvenile court
1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar.
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held a hearing on the motions on March 7, 2017. Mother, Father, Grandmother, the
guardian ad litem for J.S., a caseworker from the Agency, and two relatives testified at the
hearing. Mother testified that in exchange for her recent guilty plea to criminal charges, she
was going to be incarcerated for four years and nine months. Mother stated her desire that
legal custody of J.S. be granted to Grandmother. Both at the hearing and in a report filed
prior to the hearing, the guardian ad litem recommended that legal custody be granted to
Grandmother and that Father's current parenting time be continued. The caseworker stated
she had no concerns with either Father or Grandmother being granted legal custody.
Father's relative testified Father had the ability to parent J.S. full time.
{¶ 6} On March 15, 2017, the juvenile court granted legal custody of J.S. to
Grandmother and standard parenting time to Father. Upon considering the factors set forth
in R.C. 3109.04(F)(1) and noting Mother's wish that Grandmother be granted legal custody,
the fact that Grandmother and Father live in close proximity to one another, and
Grandmother's shown adaptability in fostering visitation with both parents, the juvenile court
found it was in the best interest of J.S. to grant legal custody to Grandmother. Father
subsequently filed a motion for a new trial and relief from judgment which was denied by
the juvenile court.
{¶ 7} Father now appeals, raising three assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED WHEN IT AWARDED TEMPORARY CUSTODY
OF THE MINOR CHILD TO CHILDREN SERVICES.
{¶ 10} Father argues the juvenile court did not have jurisdiction to grant temporary
custody of J.S. to the Agency in August 2016 because the parties were before the court on
Father's initial motion for custody, and not on a custody motion filed by the Agency.
{¶ 11} Juv.R. 13(A) allows a juvenile court to "make such temporary orders
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concerning the custody or care of a child * * * as the child's interest and welfare requires."
Thus, a juvenile court has authority to grant temporary custody as it deems necessary in
light of the child's interest and welfare. See Renz v. Renz, 4th Dist. Athens No. 93 CA 1585,
1995 Ohio App. LEXIS 176 (Jan. 19, 1995); In re Rodriguez, 6th Dist. Ottawa No. OT-87-
18, 1988 Ohio App. LEXIS 511 (Feb. 19, 1988). The juvenile court's August 5, 2016
judgment entry ordering that J.S. be placed into the temporary custody of the Agency was
therefore pursuant to the court's authority under Juv.R. 13(A).
{¶ 12} Even if we were to find the juvenile court erred in granting temporary custody
to the Agency, the error has no bearing on the ultimate outcome of the case because the
temporary custody order has been superseded by the juvenile court's March 15, 2017 final
custody determination granting legal custody to Grandmother and denying Father's motion
for custody. See Barry v. Rolfe, 8th Dist. Cuyahoga Nos. 88459, 88460, 88676, 88680 thru
88686, and 88908 thru 88911, 2008-Ohio-3131 (juvenile court's temporary custody order
was rendered moot by the court's final custody determination); Ryan v. Ryan, 5th Dist.
Tuscarawas No. 2007AP030024, 2007-Ohio-6568; and Kenney v. Kenney, 12th Dist.
Warren No. CA2001-04-036, 2001 Ohio App. LEXIS 5320 (Nov. 26, 2001) (when a trial
court enters a final custody decision, the temporary custody order is superseded).
{¶ 13} Father's first assignment of error is overruled.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE COURT ABUSED ITS DISCRETION WHEN IT AWARDED CUSTODY
TO A NONPARENT WITHOUT A FINDING OF UNSUITABILITY AND UTILIZING THE
BEST INTEREST STANDARD IN A CUSTODY DETERMINATION BETWEEN [A]
PARENT AND NON-PARENT VIOLATING APPELLEE'S CONSTITUTIONAL RIGHTS.
{¶ 16} Father argues the juvenile court erred in granting legal custody of J.S. to
Grandmother, a nonparent, without first finding Father unsuitable. In support of his
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argument, Father cites In re Perales, 52 Ohio St.2d 89 (1977).
{¶ 17} Child custody issues under Ohio law fall within the coverage of one of two
statutes, R.C. 3109.04 or 2151.23, depending upon the circumstances. In re Hockstok, 98
Ohio St.3d 238, 2002-Ohio-7208, ¶ 13. R.C. 3109.04 applies to "any proceeding pertaining
to the allocation of parental rights and responsibilities for the care of a child," and provides
that if a trial court finds "it is in the best interest of the child for neither parent to be
designated the residential parent and legal custodian of the child, it may commit the child
to a relative of the child[.]" R.C. 3109.04(A) and 3109.04 (D)(2). R.C. 2151.23(A)(2) grants
jurisdiction to the juvenile court "to determine the custody of any child not a ward of another
court of this state." Because this case involves a custody dispute between a parent and
nonparent and did not originate from divorce proceedings, R.C. 3109.04(D)(2) does not
apply. In re Hockstok at ¶ 26.
{¶ 18} In a R.C. 2151.23(A)(2) child custody proceeding between a parent and a
nonparent, the trial court may not award custody to the nonparent without first making a
finding of parental unsuitability, that is, without first determining that a preponderance of the
evidence shows that the parent abandoned the child, contractually relinquished custody of
the child, or has become totally incapable of supporting or caring for the child, or that an
award of custody to the parent would be detrimental to the child. In re Perales at syllabus.
Subsequently, the supreme court reiterated that "in custody cases between a natural parent
and nonparent, a parental unsuitability determination must be made and appear in the
record before custody can be awarded to a nonparent." In re Hockstok at ¶ 36.
{¶ 19} However, a parental unsuitability finding is required only in the context of an
original custody determination between a parent and a nonparent. Anderson v. Anderson,
12th Dist. Warren No. CA2009-03-033, 2009-Ohio-5636, ¶ 17. Once an original custody
award has been made, the party seeking to modify the award must show a change of
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circumstances even if the noncustodial party is a parent and the custodial party is a
nonparent. Id.
{¶ 20} We find the case is before us on an original custody determination. Father
and Mother were never married to one another. While the record indicates Father was
granted parenting time with J.S. following the end of his relationship with Mother, there is
no evidence of a prior adjudication or dispute between the parents regarding the custody of
J.S. Mother was therefore J.S.'s residential parent and legal custodian from the time of her
birth by operation of R.C. 3109.042(A), which provides, "An unmarried female who gives
birth to a child is the sole residential parent and legal custodian of the child until a court of
competent jurisdiction issues an order designating another person as the residential parent
and legal custodian." See In re S.S.L.S., 7th Dist. Columbiana No. 12 CO 8, 2013-Ohio-
3026. Father's custody motion did not trigger a modification of custody; rather, it sought an
initial custody determination. See id. The juvenile court's March 15, 2017 judgment entry
granting legal custody to Grandmother is therefore not a legal change or modification of
custody, but rather constitutes the initial custody determination.
{¶ 21} Neither Perales nor Hockstok involved an abused, neglected, or dependent
child and both cases arose from a private custody dispute between a parent and nonparent.
Likewise, this case does not involve an abused, neglected, or dependent child and arose
from a custody dispute between Father and Grandmother. Consequently, the unsuitability
test under Perales and Hockstok, rather than the best interest standard, applies.2 Hence,
the juvenile court was required to find, by a preponderance of the evidence, that Father was
unsuitable, that is, that he had abandoned J.S., had contractually relinquished custody of
2. For the same reasons, neither In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, nor In re L.A.B., 12th Dist.
Fayette No. CA2012-03-008, 2012-Ohio-5010, two cases cited by Grandmother in opposition to Father's
argument, are applicable.
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J.S., had become totally incapable of supporting or caring for J.S., or that an award of
custody to Father would be detrimental to J.S.
{¶ 22} The juvenile court, however, never made a finding that Father was an
unsuitable parent before awarding legal custody of J.S. to Grandmother. Rather, the court
engaged solely in a best interest analysis, which is contrary to Perales and the duty placed
on the juvenile court. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 11.
The juvenile court's judgment entry further reflects the court engaged in a comparison
analysis between Father and Grandmother. However, "[t]his comparison is inappropriate
under a suitability test. The duty placed before the juvenile court is whether father is
unsuitable; that is, whether custody with father would be detrimental to the child." Id. "Only
after a finding of parental unsuitability, should the court then engage in a best-interest test
to determine if custody to the nonparent is in the child's best interest." Id. at ¶ 15.
{¶ 23} Accordingly, we find the juvenile court erred by applying the best interest
standard to the facts of this case and failing to engage in a parental unsuitability analysis
before awarding legal custody of J.S. to Grandmother. Id. at ¶ 16; In re Hockstok, 2002-
Ohio-7208 at ¶ 29. The juvenile court's decision awarding legal custody to Grandmother is
therefore reversed and the case is remanded to the juvenile court for a redetermination of
custody under the correct legal standard of parental suitability. In re C.V.M. at ¶ 16; In re
S.S.L.S., 2013-Ohio-3026 at ¶ 32.
{¶ 24} Father's second assignment of error is accordingly well-taken and sustained.
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT'S DECISION WAS NOT IN THE BEST INTEREST OF
THE CHILD, WAS * * * AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND
[THE COURT] ABUSED ITS DISCRETION BY AWARDING CUSTODY TO THE
MATERNAL GRANDMOTHER.
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{¶ 27} Father argues that the juvenile court's decision awarding legal custody of J.S.
to Grandmother is an abuse of discretion and against the manifest weight of the evidence.
Father's third assignment of error is moot given our determination that the juvenile court's
decision granting legal custody to Grandmother must be reversed and remanded.
{¶ 28} Judgment affirmed in part and reversed in part, and cause remanded to the
juvenile court for further proceedings consistent with this opinion.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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