[Cite as J.M. v. A.M.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

[J.M.] : : Appellate Case No. 2015-CA-92 Plaintiff-Appellant : : Trial Court Case No. 14-JUV-332 v. : : (Juvenile Appeal from [A.M.] : Common Pleas Court) : Defendant-Appellee : :

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OPINION

Rendered on the 25th day of March, 2016.

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ERIC M. SOMMER, Atty. Reg. No. 0066363, 8 North Limestone Street, Suite B, Springfield, Ohio 45502 Attorney for Plaintiff-Appellant

A.M. Defendant-Appellee, pro se

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FAIN, J.

{¶ 1} Plaintiff-appellant J.M. appeals from a decision of the Clark County Juvenile

Court dismissing his action for shared parenting and visitation. He contends that the

juvenile court erred in determining that it lacked jurisdiction to determine his claims. For -2-

the reasons set forth below, we Affirm.

I. The Parties’ Relationships

{¶ 2} J.M. and A.M. were married in 2008. In May 2010, the parties became foster

parents to two children who were in the custody of the State following an adjudication that

they were neglected and dependent children. The parties were divorced on January 5,

2012. The children remained with A.M. On July 23, 2012, A.M. adopted both of the

children in the Franklin County Juvenile Court.

II. The Course of Proceedings

{¶ 3} J.M. filed a Complaint in the Clark County Court of Common Pleas, Juvenile

Section, seeking visitation with the children. In his complaint J.M. alleges that, following

the adoption, both parties continued to act as parents to the children, and that the children

identify him as their father. He further alleges that even after the adoption, the children

continue to spend one day per week, and alternate weekends, with him. He also alleges

that he contributes financial support for the children. Finally, he alleges that A.M. has

been unilaterally reducing his access to the children.

{¶ 4} The magistrate, noting that J.M. was not a parent, ordered the parties to brief

the issue of visitation rights for non-relatives. J.M. filed a brief in which he claimed that

A.M. had relinquished sole custody. A.M. filed a brief in which she disputed J.M.’s claims

and alleged that J.M. had no contact with the children, and that she has not relinquished

her right of sole custody to the children. She also argued that the juvenile court had no

jurisdiction to decide a claim for visitation only. J.M. filed a reply brief seeking a hearing

on the questions of fact raised in the parties’ pleadings.

{¶ 5} Thereafter, the magistrate entered a decision finding that it had no jurisdiction -3-

over the issue of visitation. The magistrate also raised the question of the effect the

adoption had on J.M.’s claim. J.M. filed objections thereto, and also moved to amend

his complaint to include a claim for shared parenting. The juvenile court ordered the

parties to brief the question of jurisdiction and to address the effect of the adoption on

that jurisdiction. J.M. thereafter requested a hearing.

{¶ 6} A.M. moved to dismiss J.M.’s claims. She argued that pursuant to R.C.

2151.417, the Franklin County Juvenile Court had ongoing jurisdiction over the children,

and that J.M. improperly filed his complaint in Clark County.

{¶ 7} In October 2015, the juvenile court dismissed the action, finding that it lacked

jurisdiction over the matter because the adoption of the children extinguished any claim

J.M. may have had to the children.1 J.M. appeals.

III. We Have Appellate Jurisdiction

{¶ 8} Initially we note that following the filing of appellate briefs, A.M., who is

proceeding pro se in this appeal, has moved to dismiss this appeal, based upon her claim

that she and the children have resided outside of Ohio for more than six months. She

cites the Uniform Child Custody Jurisdiction and Enforcement Act, codified at R.C.

Chapter 3127, as support for dismissal.

{¶ 9} A.M.’s pleading raises a question of whether the juvenile court has

jurisdiction in this matter, not whether we have appellate jurisdiction, under R.C. 2505.02,

to review the order of the trial court.2 Furthermore, there is no competent evidence in

1 Although the juvenile court did not issue an express ruling on the motion to amend, we conclude that it implicitly granted the motion, since it ultimately ruled on the request for shared parenting contained within the motion to amend. 2 Had the trial court granted J.M. relief, for example, A.M. would presumably have

invoked our appellate jurisdiction to review that order, contending that the trial court -4-

our record to indicate that A.M. and the children are not subject to Ohio jurisdiction.

Finally, pursuant to R.C. 3127.15(A)(1), Ohio courts have jurisdiction when the child has

resided in the state at the time of, or six months prior to, the commencement of the action.

Again, there is no evidence in our record to indicate that A.M. and the children were

residing out of state at the time this action was commenced. Accordingly, we conclude

that A.M.’s motion to dismiss, filed January 7, 2016, lacks merit, and it is hereby overruled.

IV. The Trial Court Lacked Subject-matter

Jurisdiction over this Cause of Action

{¶ 10} J.M.’s sole assignment of error states as follows:

A TRIAL COURT ERRS WHEN IT DENIES PARENTING RIGHTS

IN A NON-TRADITIONAL FAMILY CASE, WITHOUT AN EVIDENTIARY

HEARING, WHEN A PARENT-CHILD RELATIONSHIP WAS IN

EXISTENCE SUBSEQUENT TO AN ADOPTION.

{¶ 11} J.M. contends that the juvenile court erred by dismissing the action without

conducting a hearing on his complaint for visitation and his amended complaint for shared

parenting of the children.

{¶ 12} J.M. originally asked solely for visitation. A juvenile court does not have

jurisdiction under R.C. 2151.23(A)(2) to grant a request for visitation only.3 In re Gibson,

,

(1991). Thus, there is no error in the

magistrate’s decision to dismiss the complaint for visitation.

lacked jurisdiction in the matter. 3 A juvenile court does, however, have jurisdiction to issue temporary visitation orders during the pendency of a custody case within its jurisdiction under R.C. 2151.23. Rowell v. Smith, 10th Dist. Franklin No. 12AP-802,

, ¶ 57. -5-

{¶ 13} However, as noted above, J.M. filed a motion to amend, in which he

asserted a claim for shared parenting with an attendant interim order for visitation. Thus,

we must address whether the juvenile court had jurisdiction to determine the action for

shared parenting.

{¶ 14} A juvenile court may exercise jurisdiction only if it is expressly granted the

authority to do so by statute.

. “Under Ohio law, child custody disputes

fall within the coverage of either R.C. 3109.04 or R.C. 2151.23.” In re Jones, 2d Dist.

Miami No. 2000 CA 56, 2002 WL940195, *3 (May 10, 2002). “* * * R.C. 2151.23(A)(2)

gives juvenile courts exclusive jurisdiction ‘to determine the custody of any child not a

ward of another court of this state[.]’ ”

The statute gives the juvenile court jurisdiction

to determine custody actions between a parent and a non-parent. See In re Perales,

,

(1977).

{¶ 15} The difficulty with J.M.’s motion to amend is that it makes a request for

shared parenting, not custody. Shared parenting is governed by R.C. 3109.04(A)(2).

That statute uses only the word “parent” in the context of a shared parenting agreement.

In re Bonfield,

,

,

, ¶ 23. “The General

Assembly could have provided juvenile courts with the authority to allocate parental rights

and responsibilities not only to parents but also to guardians, custodians, and others who

stand in loco parentis. That the statute refers to ‘parent’ reflects legislative intent to

exclude from the benefits of R.C. 3109.04 guardians or custodians in loco parentis.”

“Since there is no definition of ‘parent’ in R.C. 3109.04, it is appropriate to search related

sections of the Revised Code for a definition. A plain reading of R.C. 3111.01 indicates

that there are three ways a ‘parent and child relationship’ can be established: by natural -6-

parenthood, by adoption, or by other legal means in the Revised Code that confer or

impose rights, privileges, and duties upon certain individuals.” Id., ¶ 28. Here, J.M.

does not fall into any category establishing parenthood. Thus, the juvenile court lacked

subject-matter jurisdiction over the claims raised.

{¶ 16} We are cognizant of the fact that the court in Bonfield converted the

petitioners’ request for shared parenting into a claim for shared custody. Id., at ¶ 36.

However, the court specifically noted that the petitioners’ appellate brief had repeatedly

made references to “custody,” with a request to recognize that they are “equal custodial

parents.” Id. Likewise, the petitioners asked the trial court to grant the “the legal status

of co-custodians [of] the children.” Id. Thus, the Supreme Court found it appropriate to

consider the case in the context of a claim for shared custody. J.M.’s pleadings in the

juvenile court, as well as his appellate brief, contain no such references. Furthermore,

Bonfield involved two petitioners, a natural mother and her same-sex partner, who were

in agreement on the issue. Here, there is no such agreement.

{¶ 17} Finally, we note that A.M. contends the Clark County Juvenile Court lacks

jurisdiction because the children were adjudicated dependent in the Franklin County

Juvenile Court, which, A.M. argues, retains jurisdiction over all subsequent custody and

visitation matters. R.C. 2151.417(B) states “if a court issues a dispositional order

pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised Code, the court has

continuing jurisdiction over the child as set forth in division (F)(1) of section 2151.353 of

the Revised Code.” However, R.C. 2151.353(F)(1) does not require the court to retain

jurisdiction over a child who has been adopted following the court’s dispositional orders.

Instead, the statute provides that the court may retain such jurisdiction. There is -7-

evidence in this record that the Franklin County Juvenile Court did not exercise its option

to retain jurisdiction. Therefore, this argument lacks merit.

{¶ 18} We conclude that the juvenile court lacked jurisdiction, albeit for reasons

other than those stated by the court, to entertain J.M.’s complaint for shared parenting.

Accordingly, the sole assignment of error is overruled.

V. Conclusion

{¶ 19} J.M.’s sole assignment of error having been overruled, the judgment of the

juvenile court is Affirmed.

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HALL and WELBAUM, JJ., concur.

Copies mailed to:

Eric M. Sommer A.M. Hon. Thomas J. Capper