In re B.N.S.

[Cite as In re B.N.S., 2020-Ohio-4413.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: :

B.N.S., et al. : CASE NOS. CA2020-03-034
CA2020-03-035
: CA2020-03-036

:
OPINION
: 9/14/2020

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JS2014-1000

Law Offices of Jason A. Showen, LLC, Jason A. Showen, 324 East Warren Street, Lebanon,
Ohio 45036, for appellants

The Lampe Law Office, LLC, M. Lynn Lampe, Stephen J. Otte, 9277 Centre Pointe Drive,
Suite 100, West Chester, Ohio 45069, for appellees

S. POWELL, J.

{¶ 1} Appellants, the biological mother of B.S., K.S., and H.L. ("Mother") and the

biological father of B.S. and K.S. ("Father" or collectively referred to with Mother as

"Parents"), appeal the decision of the Butler County Court of Common Pleas, Juvenile

Division ("the Juvenile Court"), granting Appellee's ("Grandfather") motion to stay the

proceedings in the Juvenile Court pending the outcome of related adoption proceedings in
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the Warren County Court of Common Pleas, Probate Division ("the Probate Court").1 H.L.'s

biological father ("R.L.") did not appeal the Juvenile Court's decision.

{¶ 2} In September 2014, Grandfather filed for the temporary custody of B.S., K.S.,

and H.L. in the Juvenile Court. The complaints indicated that Grandfather sought the

temporary custody of the children "until [Mother] gets back on her feet." Parents consented

to the change in custody of B.S. and K.S., and Mother and R.L. consented to the change in

custody of H.L.

{¶ 3} In October 2014, after a hearing, the Juvenile Court placed the children in the

legal custody of Grandfather. In its written decision, the Juvenile Court also indicated

Parents' and R.L.'s visitation with the children would be "at the discretion of [Grandfather]."

{¶ 4} In June 2019, Grandfather initiated adoption proceedings for the children by

filing petitions of adoption in the Probate Court ("the Adoption Case"). In the petitions,

Grandfather claimed the consent of neither Parents nor R.L. was required due to their lack

of contact with the children over the preceding year.

{¶ 5} In September 2019, three months after Grandfather initiated the Adoption

Case in the Probate Court, Parents moved the Juvenile Court to modify their visitation and

parenting time ("Visitation Case"). In their motion, Parents requested the Juvenile Court to

order an alternate parenting schedule with the children that is in the children's best interests,

and not solely controlled by Grandfather.

{¶ 6} In December 2019, Grandfather moved the Juvenile Court to stay any further

hearings regarding parenting issues and to relinquish its jurisdiction to the Probate Court.

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and
place it on the regular calendar for purposes of issuing this opinion.
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In his motion, Grandfather indicated such a stay was proper in light of the pending Adoption

Case in the Probate Court. Grandfather further claimed that it was "likely" his petitions for

adoption would be granted in the Adoption Case, and that "it would not be in the minor

[children's] best interest[s] to proceed with * * * the motion for visitation while that matter is

pending." The Juvenile Court held a hearing on Grandfather's motion, and ordered the

parties to submit written memoranda regarding Grandfather's request for stay and

relinquishment. Thereafter, in January 2020, Parents filed a memorandum in opposition to

Grandfather's motion, and Grandfather filed a memorandum in response.

{¶ 7} In February 2020, the magistrate issued a decision and order granting

Grandfather's motion to stay and to relinquish jurisdiction. The magistrate's decision

ordered that all further proceedings in the Visitation Case were to be stayed, and that the

Juvenile Court "hereby relinquishes jurisdiction of [the Visitation Case] to the [Probate

Court], pending the outcome of the adoption proceedings in said court." The decision

further stated that "if the matter is not resolved with finality in the Probate Court, counsel

may at that time file to reset the pending matters for further proceedings before [the Juvenile

Court]."

{¶ 8} Parents filed objections to the magistrate's decision. The Juvenile Court

overruled their objections and adopted the magistrate's decision in its entirety.

{¶ 9} Parents now appeal, raising two assignments of error for our review.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED IN STAYING JUVENILE COURT

PROCEEDINGS, PENDING THE OUTCOME OF AN ADOPTION IN A NEIGHBORING

COUNTY'S PROBATE COURT.

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{¶ 12} In their first assignment of error, Parents claim the trial court abused its

discretion and committed plain error in staying the Visitation Case in Butler County pending

the resolution of the Adoption Case in Warren County.

{¶ 13} The determination of whether to issue a stay rests within the trial court's sound

discretion and will not be disturbed on appeal absent an abuse of discretion. In re Goff,

11th Dist. Portage No. 2003-P-0068, 2003-Ohio-6087, ¶ 19. An abuse of discretion is more

than an error in judgment or law and connotes that the trial court's decision is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 14} In granting Grandfather's motion to stay, the Juvenile Court stated the

following:

In this case, the filing in the [P]robate [C]ourt occurred first.
Nothing has been filed with this court between 2014 and the
present. If [Parents] had filed in this court prior in time to the
filing of the adoption petition in [P]robate [C]ourt, then this court
would exercise its continuing jurisdiction, and the [P]robate
[C]ourt would be mandated to consider the parent's legal action
as part of its deliberations. To permit the converse is
tantamount to allowing the filing of peripheral motions to delay
an otherwise proper determination of the rights of the parties.
The [J]uvenile [C]ourt is not mandated to go forward with the
visitation motion. Instead, it makes more sense to await the
determination of the probate court regarding the adoption
proceedings.

Parents initially argue the Juvenile Court's decision to stay the Visitation Case until a

determination has been made in the Adoption Case is an abuse of discretion and plain error

because its decision is based upon inapplicable and irrelevant case law, i.e., In re Adoption

of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787.

{¶ 15} In In re Adoption of M.G.B.-E., the appellant-father filed a motion in the

domestic relations court to reestablish parenting time with his two children. Four days later,

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the children's stepfather filed adoption petitions in the probate court. While both matters

remained pending, the probate court determined that the father's consent to the adoption

was not required, and did not mention the father's pending motion to reestablish parenting

time or the proceedings in the domestic relations court that preceded the probate court's

hearing.

{¶ 16} On appeal to the Ohio Supreme Court, the court rejected the father's

argument that "a probate court may not proceed with an adoption petition if any pending

parenting matter is proceeding in another court." Id. at ¶ 1. Instead, the court reiterated

that "when a parenting issue pending in a juvenile or domestic-relations court does not

affect a probate court's ability to determine the statutory prerequisites for adoption, we have

not required the probate court to refrain from exercising its exclusive jurisdiction over

adoption proceedings." Id. at ¶ 35, citing State ex rel. Allen Cty. Children Servs. Bd. v.

Mercer Cty. Common Pleas Court, Probate Div., 250 Ohio St.3d 230, 2016-Ohio-7382, ¶

41. The court continued and indicated that although the probate court could proceed in the

adoption case, it was required to take into account the father's efforts to reestablish his

parental rights and responsibilities through the domestic relations court during the year

preceding the filing of the adoption petitions. Id. at ¶ 40, citing In re Adoption of Schoeppner,

46 Ohio St.2d 21, 24 (1976).

{¶ 17} The Ohio Supreme Court also concluded that the jurisdictional-priority rule,

which applies when cases in multiple courts of concurrent jurisdiction involve the same

parties and when either the causes of action are the same or the cases present part of the

same whole issue, did not apply. Id. at ¶ 25, citing State ex rel. Otten v. Henderson, 129

Ohio St.3d 453, 2011-Ohio-4082, ¶ 24, 29. Specifically, the court stated that because the

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probate court and the domestic relations court are not courts of concurrent jurisdiction; the

domestic-relations court lacks the ability to adjudicate adoption petitions; and the

proceedings did not involve the same parties; the jurisdictional-priority rule did not apply,

and the probate court was not precluded from proceeding on the adoption petitions. Id.

{¶ 18} Based upon the court's holding in In re Adoption of M.G.B.-E., Parents argue

the jurisdictional-priority rule does not apply here and that the Juvenile Court was not

precluded from proceeding in the Visitation Case. After review, we agree. Specifically, the

priority doctrine does not apply where two courts have exclusive jurisdiction over different

issues. Id. at ¶ 27. It is well settled that the probate court has exclusive jurisdiction over

adoption petitions. In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, ¶ 9.

By contrast, the juvenile court has jurisdiction of issues related to custody and parenting

time. R.C. 2151.23(A)(2). Consequently, because the Probate Court has jurisdiction over

Grandfather's adoption petitions, and the Juvenile Court has jurisdiction over Parents'

motion, the two courts are not courts of concurrent jurisdiction and the jurisdictional-priority

rule does not apply in this case. As a result, we find the Juvenile Court was not precluded

from proceeding in the Visitation Case or from considering Parents' motion. In re Adoption

of M.G.B.-E., 2018-Ohio-1787 at ¶ 27.

{¶ 19} However, although the Juvenile Court was permitted to consider Parents'

motion, it was not required to continue the Juvenile Court proceedings after learning of the

Adoption Case. Rather, we find that it was within the court's discretion to defer

consideration of Parents' motion, and to stay the Visitation Case entirely, until the resolution

of the Adoption Case. First, although Parents claim the Juvenile Court's reasoning is "not

explained," it is clear the court elected to stay the Visitation Case pending the outcome of

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the Adoption Case because Grandfather filed his petitions for adoption first, and the Probate

Court's decision on those petitions could be dispositive of the issues raised in Parents'

motion. That is, if the Probate Court grants Grandfather's adoption petitions, the final

adoption decree will terminate the Juvenile Court's jurisdiction and will permanently

terminate Parents' parental rights. In re Adoption of A.L.S., 12th Dist. Butler No. CA2017-

09-146, 2018-Ohio-507, ¶ 13. Because such an outcome is possible, it would be

unnecessary to continue proceedings in the Juvenile Court which could be rendered moot

by the outcome of the Adoption Case in Probate Court. As stated by the Juvenile Court in

its decision and entry, such simultaneous proceedings in the Juvenile Court would simply

delay an otherwise proper determination of the rights of the parties and could subject the

children to more litigation than necessary. Consequently, because Grandfather's petitions

for adoption were filed first, and a determination regarding those petitions could dispose of

the parenting issues pending before the Juvenile Court, we find it was within the Juvenile

Court's discretion to stay the proceedings in the Juvenile Court pending the outcome of the

Adoption Case.

{¶ 20} We also reject Parents' argument that the trial court's decision to stay the

Visitation Case interferes with Parents' fundamental right to a hearing and their right to seek

parenting time with their children. We recognize that the right of a natural parent to the care

and custody of his child is one of the most precious and fundamental in law. In re Adoption

of: A.N.L., 12th Dist. Warren Nos. CA2004-11-131 and CA2005-04-046, 2005-Ohio-4239,

¶ 50. However, that right must be balanced against the state's interest in protecting the

welfare of the children. Id.

{¶ 21} In 2014, Grandfather was granted legal custody of the children and any

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visitation with Parents was at Grandfather's discretion. Despite the change in legal custody

to Grandfather, Parents retained certain rights related to the children, including the privilege

of reasonable visitation, consent to adoption, the privilege to determine the children's

religious affiliation, and the responsibility for support. R.C. 2151.011(B)(48).

{¶ 22} According to the record, Parents did not seek a modification of their parenting

time or the custody order for approximately four years. After filing their motion in 2019,

Grandfather moved the Juvenile Court to stay its proceedings and to relinquish its

jurisdiction to the Probate Court, as his adoption petitions were already pending. The

Juvenile Court held a hearing, and ultimately ordered the parties to submit written

arguments regarding Grandfather's request for stay and relinquishment. After

consideration of the parties' written memoranda and the record, the Juvenile Court elected

to stay the proceedings in the Juvenile Court pending the outcome of the adoption

proceedings in Warren County. The Juvenile Court further noted that "[i]f the matter is not

resolved with finality in the Probate Court, counsel may at that time file to reset the pending

matters for further proceedings before this court."

{¶ 23} Based on the above, we do not find the Juvenile Court abused its discretion

or deprived Parents of any fundamental rights when it stayed the proceedings. Specifically,

although the Juvenile Court deferred consideration of Parents' motion at this time, it did so

after Parents had an opportunity to be heard on Grandfather's motion to stay and in order

to allow the adoption proceedings to conclude before addressing Parents' motion. As noted

above, if the Probate Court grants Grandfather's adoption petitions, the final adoption

decree will terminate the Juvenile Court's jurisdiction and will permanently terminate

Parents' parental rights. Thus, continuing the proceedings in both the Probate Court and

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Juvenile Court could be unnecessary and subject the children to more litigation than

necessary. Such an outcome is not in the children's best interest.

{¶ 24} Furthermore, in allowing the Probate Court to proceed in the Adoption Case,

the Juvenile Court has not eliminated Parents' ability to be heard on the matter. Rather,

due to the finality and serious import of adoption, the law accords protections to a natural

parent when the adoption of a child is proposed, including an opportunity to be heard, before

any parental rights are terminated. In re Greer, 70 Ohio St.3d 293, 298 (1994). Thus,

Grandfather's adoption petitions can only be granted, thereby terminating Parents' parental

rights and the Juvenile Court's jurisdiction, after Parents have an opportunity to be heard in

the Probate Court.

{¶ 25} Moreover, while the Juvenile Court deferred consideration of Parents' motion,

it expressly afforded Parents the ability to reset the matter for further proceedings in the

Juvenile Court if the matter was not resolved in its entirety in the Probate Court. Thus,

although the outcome of the Adoption Case may render Parents' motion moot, Parents have

the ability to be heard in the Juvenile Court in the event all parenting time and visitation

issues are not resolved. As such, we conclude the Juvenile Court did not violate Parents'

fundamental rights, or limit their ability to be heard, in issuing the stay order.

{¶ 26} Lastly, we are not persuaded by Parents' argument that, based upon the

holding in In re Adoption of M.G.B.-E., Parents' motion must be considered in the analysis

of the of the Adoption Case in Warren County.

{¶ 27} According to the record, Grandfather alleged in his adoption petitions that

Parents' consent to the adoption was not required because Parents had "failed without

justifiable cause to provide more than de minimis contact with [the children] or to provide

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for the maintenance and support of [the children] as required by law or judicial decree for a

period of at least one year immediately preceding either the filing of the adoption petition or

the placement of the minor in the home of the petitioner." R.C. 3107.07(A). Because

adoption terminates fundamental rights of the natural parents, the Ohio Supreme Court has

held that any exception to the requirement of parental consent to adoption must be strictly

construed so as to protect the right of natural parents to raise and nurture their children. In

re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, ¶ 12. Thus, in construing R.C.

3107.07(A), a court is obliged to protect the interests of the non-consenting parent who may

be subjected to the forfeiture or abandonment of his or her parental rights. Id.

{¶ 28} In In re Adoption of M.G.B.-E., the court indicated that when "strictly

construing R.C. 3107.07(A) in [the father's] favor, and remaining cognizant that parents

facing the termination of their parental rights must be afforded every protection the law

allows, we conclude that [the father's] efforts to enforce his parental rights, prior to the filing

of [stepfather's] adoption petitions, are relevant [to the adoption proceedings]." Id.

(Emphasis added.) Thus, based upon the holding in In re Adoption of M.G.B.-E., Parents

claim the resolution of their motion, which is an effort to enforce their parental rights, is

relevant to the Adoption Case. We disagree.

{¶ 29} First, as noted by the Juvenile Court, In re Adoption of M.G.B.-E. is factually

distinguishable from the case at hand. Specifically, that case discusses the authority of a

probate court to proceed on an adoption petition when preexisting matters concerning the

parenting or parentage of a child are pending in another court. Due to the timing of the

adoption petition, the court indicated that the probate court was required to consider all of

the father's efforts to enforce his parental rights before the filing of the stepfather's adoption

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petitions. As such, the father's visitation motion filed in the domestic relations court prior to

the filing of the adoption petition was deemed relevant. Similar facts are not present here.

Rather, in the instant matter, Parents' filed their motion to modify their parenting time several

months after Grandfather had filed his adoption petitions in Warren County. Thus, unlike

the father's motion for visitation in In re the Adoption of M.G.B.-E., Parents' motion has no

bearing on whether Parents failed without justifiable cause to provide more than de minimis

contact with the children in the year preceding the filing of the adoption petitions. Moreover,

because Parents filed their motion after Grandfather filed the adoption petitions, their motion

is not indicative of any effort by Parents to enforce their parental rights before the filing of

the Adoption Case and is therefore, not relevant to the adoption proceedings. As a result,

the Probate Court is not required to consider the outcome of Parents' motion in the Adoption

Case, and the Juvenile Court's decision not to immediately consider or rule upon Parents'

motion was not unreasonable.

{¶ 30} In light of the above, we find the Juvenile Court did not abuse its discretion in

staying the Juvenile Court's proceedings pending the outcome of the Adoption Case.

Accordingly, Parents' first assignment of error is overruled.

{¶ 31} Assignment of Error No. 2:

{¶ 32} THE TRIAL COURT ERRED IN RELINQUISHING JURISDICTION OF THIS

CASE TO THE WARREN COUNY (SIC) PROBATE COURT PENDING THE OUTCOME

OF THE PENDING ADOPTION PROCEEDINGS.

{¶ 33} In their second assignment of error, Parents argue the Juvenile Court abused

its discretion and committed plain error in relinquishing jurisdiction of the Visitation Case to

the Probate Court pending the outcome of the Adoption Case.

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{¶ 34} In the Juvenile Court's decision, the court states it "hereby orders that further

proceedings, in this case, shall be stayed, and the court hereby relinquishes jurisdiction of

this case to the [Probate Court], pending the outcome of the adoption proceedings in said

court." Parents claim this language effectively transfers the Visitation Case to the Probate

Court, and thereby gives the Probate Court unauthorized authority to determine Parents'

motion. We disagree with Parents' interpretation of the Juvenile Court's order. Rather,

when considering the Juvenile Court's order in its entirety, we find the order does not

"relinquish its jurisdiction" to the Probate Court, but merely affords the Probate Court the

opportunity to proceed on Grandfather's adoption petitions, which were filed before Parents'

motion, and stays the Juvenile Court proceedings until the adoptions are either granted or

denied by the Probate Court. In the event the adoptions are denied by the Probate Court,

thereby leaving the issues set forth in Parents' motion undecided, the Juvenile Court

expressly retained jurisdiction and directed Parents to reset the pending matters for further

proceedings in the Juvenile Court. Such an order does not allow the Probate Court to

determine Parents' motion, but instead, recognizes that the outcome of the adoption

proceedings may render Parents' motion moot in its entirety. Thus, although the Juvenile

Court utilizes the phrase "relinquishes jurisdiction," it is evident from a reading of the court's

order in its entirety that it is simply deferring its ability to proceed until the adoption

proceedings conclude. Such a deferral is not unreasonable or arbitrary, nor is it an abuse

of discretion. Accordingly, Parents second assignment of error is overruled.

{¶ 35} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.

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