Richland Cty. Children Servs. Bd. v. Adam ( 2012 )


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  • [Cite as Richland Cty. Children Servs. Bd. v. Adam, 
    2012-Ohio-2596
    .]
    COURT OF APPEALS
    RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :      JUDGES:
    RICHLAND COUNTY CHILDREN                             :      Patricia A. Delaney, P.J.
    SERVICES BOARD                                       :      Sheila G. Farmer, J.
    :      Julie A. Edwards, J.
    Plaintiff-Appellee          :
    :      Case No. 2011CA0071
    -vs-                                                 :
    :
    :      OPINION
    SPENCER A. ADAM
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                                      Civil Appeal from Richland County
    Court of Common Pleas, Juvenile
    Division, Case No. 2010DEP00230
    JUDGMENT:                                                     Dismissed
    DATE OF JUDGMENT ENTRY:                                       June 7, 2012
    APPEARANCES:
    For Plaintiff-Appellee                                        For Defendant-Appellant
    J. PETER STEFANUIK                                            SPENCER A. ADAM, Pro Se
    Richland County Children Services                             1175 Harwood Drive, Apt. H
    731 School Road                                               Mansfield, Ohio 44906
    Mansfield, Ohio 44907
    For Stephanie Green                                           Guardian Ad Litem
    DALE MUSILLI                                                  SHERYL GROFF
    105 Sturges Avenue                                            13 Park Avenue West, Suite 602
    Mansfield, Ohio 44903                                         Mansfield, Ohio 44902
    [Cite as Richland Cty. Children Servs. Bd. v. Adam, 
    2012-Ohio-2596
    .]
    Edwards, J.
    {¶1}    Defendant-appellant, Spencer Adam, appeals from the Richland County
    Juvenile Court’s denial of his motion to terminate shared parenting and his motion to
    voluntarily relinquish parental rights.
    STATEMENT OF THE FACTS AND CASE
    {¶2}    M.A. (DOB 10/13/97) is the son of appellant Spencer Adam and Stephanie
    Green. On November 3, 2010, appellee Richland County Children Services (“RCCS”)
    filed a complaint in the Richland County Court of Common Pleas, Juvenile Division,
    asking the court to find M.A. to be a dependent child and to grant protective supervision
    to RCCS. A pretrial conference before a Magistrate was held on January 12, 2011. After
    the parties were unable to reach an agreement concerning the complaint in this case,
    the Magistrate, pursuant to an order filed on January 21, 2011, ordered that the case be
    continued for trial.
    {¶3}    The trial court, as memorialized in a Judgment Entry filed on February 2,
    2011, ordered that the trial be set for January 27, 2011. The trial court, in its Judgment
    Entry, noted that both appellant and Green had entered denials to the allegations
    contained in the complaint.
    {¶4}    An adjudicatory hearing before a Magistrate was held on January 27,
    2011. Prior to the commencement of the hearing, Green admitted that M.A. was a
    dependent child. The Magistrate, as memorialized in a Decision filed on February 2,
    2011, found that M.A. was a dependent child with respect to both parents. The parties
    agreed that the matter would proceed directly to disposition. The Magistrate, in his
    Richland County App. Case No. 2011CA0071                                                 3
    Decision, recommended that M.A. remain in the custody and care of his mother subject
    to protective supervision by RCCS.
    {¶5}   On February 9, 2011, appellant filed a Motion to Terminate Parental
    Rights pursuant to R.C. 2151.414(E)(16).        On February 11, 2011, appellant filed
    objections to the Magistrate’s decision that M.A. was a dependent child as it relates to
    appellant. The objections were overruled via a Judgment Entry filed on March 3, 2011.
    {¶6}   Subsequently, the Magistrate, in an Order filed on April 6, 2011,
    recommended that appellant’s Motion to Terminate Parental Rights be denied. The
    Magistrate stated that courts did not terminate the rights on one parent independent of
    the other and also that appellant’s motion was premature because “the Protective
    Supervision Order was just granted by Magistrate’s Decision filed February 2, 2011
    (further approved and adopted by Judgment Entry filed March 3, 2011).”
    {¶7}   At a case plan review on April 28, 2011, appellant requested to be
    removed from the case plan and was removed from the same.
    {¶8}   On May 31, 2011, appellant filed another Motion to Terminate Parental
    Rights. Appellant, in his motion, asked that his parental rights be terminated at or before
    the annual case plan review and indicated that he “had repudiated his rights and
    responsibilities as a father.” The Magistrate, in a Magistrate’s Decision filed on June 9,
    2011, again recommended that such motion be overruled because the trial court would
    not terminate the rights of one parent independent of the other and because the motion
    lacked merit. In response, appellant, on June 15, 2011, filed a “Motion to Object Motion
    to Terminate Shared Parenting Plan Motion to Change Name.” Appellant, in his motion,
    asked, in part, that the child’s surname be changed to Green. Appellant also asked that
    Richland County App. Case No. 2011CA0071                                                   4
    “[i]n the alternative, or in addition to the motion to terminate parental rights and the
    objection to the Court’s opinion on that motion”, the trial court “terminate shared
    parenting rights under ORC 3109.”
    {¶9}   Pursuant to a Judgment Entry filed on June 30, 2011, the trial court
    overruled appellant’s objection to the Magistrate’s June 9, 2011 Decision and approved
    and adopted the same. The trial court stated that a parent did not have a right, as a
    matter of law, to “unilaterally abandon one’s parental duties.” The trial court, in its
    Judgment Entry, further overruled appellant‘s request to terminate the shared parenting
    plan and to change the child’s surname.
    {¶10} On July 7, 2011, appellant filed a Motion to Object. Appellant, in such
    motion, objected to the denial of his motion for name change, his motion to terminate
    shared parenting and his motion for termination of parental rights. The trial court, as
    memorialized in a Judgment Entry filed on July 11, 2011, overruled appellant‘s Motion
    to Object. The trial court, in its Judgment Entry, stated, in relevant part, as follows:
    {¶11} “WHEREAS on June 30, 2011 the Court entered judgment overruling
    various motions filed by Spencer Adam, biological father of the above-named child; and
    {¶12} “WHEREAS included in said judgment was a record notation to the fact
    that Mr. Adam, who previously declined legal representation at public expense in this
    case, continues to file meritless, irrelevant, and/or superfluous motions/requests with
    the Court, such that the Court therein put Mr. Adam on notice that such filings should
    not continue; and
    {¶13} “WHEREAS, notwithstanding said order to cease filing superfluous
    motions with the Court, Mr. Adam nevertheless proceeded to file on July 7, 2011 a
    Richland County App. Case No. 2011CA0071                                               5
    ‘Motion to Object,’ which the Court finds is meritless, irrelevant, and/or superfluous on
    its face.”
    {¶14} Appellant now raises the following assignments of error on appeal:
    {¶15} “I. “THE COURT’S DISMISSAL, AND/OR JUDGMENT, OF THE
    APPELLANT’S MOTION TO TERMINATE SHARE PARENTING RIGHTS AS IT
    RELATES TO THE FATHER, HOLDING THAT IT WAS A FRIVOLOUS MOTION AND
    WAS WITHOUT MERIT, INSTEAD OF DECIDING THE MOTION BASED ON THE
    BEST INTEREST’S ANALYSIS ENACTED UNDER R.C. 2151 AND R.C. 3109.
    {¶16} “II. THE JUDGMENT OF THE COURT THAT THE VOLUNTARILY
    RELINQUISHMENT OF PARENTAL RIGHTS, WITH THE STIPULATION THAT
    FATHER MAINTAIN HIS CURRENT FINANCIAL OBLIGATION TO PAY CHILD
    SUPPORT, CANNOT BE GRANTED INDEPENDENT OF THE TERMINATION OF THE
    PARENTAL RIGHTS OF THE OTHER PARENT, AND IS NOT A RIGHT AS A MATTER
    OF LAW, IS AN ERRONEOUS INTERPRETATION TO THE EXTENT THAT ITS
    OPINION HOLDS THAT THE TERMINATION OF PARENTAL RIGHTS CANNOT BE
    UNILATERAL. FURTHER, TO THE EXTENT THAT THE OPINION HOLDS THAT IT’S
    NOT A RIGHT AS A MATTER OF LAW, IT DEFEATS THE INTENT OF LEGISLATION
    BECAUSE THE COURT SHOULD HAVE DECIDED THIS MOTION UNDER A BEST
    INTEREST’S ANALYSIS INSTEAD OF MERELY HOLDING THAT IT WAS NOT A
    RIGHT AS A MATTER OF LAW.
    {¶17} “III. THE IMPLICATION IN THE TRIAL COURT’S DECISION THAT THE
    FATHER’S DECISION TO FOREGO LEGAL REPRESENTATION DURING TRIAL
    MATERIALLY AFFECTED THE OUTCOME OF THE CASE IS IRRELEVANT TO THE
    Richland County App. Case No. 2011CA0071                                                            6
    MOTION           TO     TERMINATE           SHARED         PARENTING          AND         VOLUNTARILY
    RELINQUISHING PARENTAL RIGHTS, AND IS AN ATTEMPT BY THE COURT TO
    SHIFT THE FOCUS OF THIS APPEAL FROM THE ACTUAL ISSUES, AND SHOULD
    BE DISREGARDED DURING THIS APPEAL.
    {¶18} “IV. THE TRIAL COURT’S HOLDING THAT IT HAD PREVIOUSLY
    CAUTIONED THE FATHER ABOUT FRIVOLOUS MOTIONS, TO THE BEST
    KNOWLEDGE OF THE APPELLANT, IS NOT A TRUE STATEMENT IN THAT A
    NOTICE WAS NEVER SERVED UP THE APPELLANT, AND IS ALSO NOT TRUE IN
    THAT THE APPELLANT HAS YET TO FILE A FRIVOLOUS MOTION TO THE TRIAL
    COURT; OR AT LEAST REASONABLE MINDS COULD DIFFER AS TO WHETHER
    THESE MOTIONS WERE TRULY FRIVOLOUS AND WITHOUT MERIT.”
    I, III
    {¶19} Appellant, in his first and third assignments of error, challenges the trial
    court’s denial of his motion to terminate shared parenting rights as it relates to
    appellant.
    {¶20} As noted by appellant in his filings in the trial court1, the shared parenting
    plan was issued by the Richland County Domestic Relations Court, which is a separate
    division of the Court of Common Pleas, rather than the Juvenile Court. See R.C.
    2301.03.        We find that the trial court did not err in overruling appellant’s motion to
    terminate the shared parenting plan because the underlying order granting shared
    parenting rights was issued by the Domestic Relations Division. As noted by appellee,
    the Richland County Juvenile Court had no jurisdiction to grant such order.
    {¶21} Appellant’s first assignment of error is, therefore, overruled.
    1
    See, for example, appellant’s February 9, 2011 Motion to Terminate Parental Rights.
    Richland County App. Case No. 2011CA0071                                                     7
    II, III
    {¶22} Appellant, in his second and third assignments of error, argues that the
    trial court erred in denying his motion to voluntarily relinquish parental rights.
    {¶23} As a preliminary matter, we must first determine whether the order under
    review is a final appealable order. If an order is not final and appealable, then we have
    no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.
    Co. of N. Am., 
    44 Ohio St.3d 17
    , 20, 
    540 N.E.2d 266
    , (1989). In the event that the
    parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.
    See Chef Italiano Corp. v. Kent State Univ., 
    44 Ohio St.3d 86
    , 
    541 N.E.2d 64
    , (1989);
    Whitaker–Merrell v. Carl M. Geupel Const. Co., 
    29 Ohio St.2d 184
    , 186, 
    280 N.E.2d 922
    , (1972).
    {¶24} An appellate court has jurisdiction to review and affirm, modify, or reverse
    judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
    IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M
    Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final
    and appealable, then we have no jurisdiction to review the matter and must dismiss it.
    See Gen. Acc. Ins. Co., supra at 20.
    {¶25} For an order to be final and appealable, it must meet the requirements of
    R.C. 2505.02(B). R.C. 2505.02(B) provides:
    {¶26} “An order is a final order that may be reviewed, affirmed, modified, or
    reversed, with or without retrial, when it is one of the following:
    {¶27} “(1) An order that affects a substantial right in an action that in effect
    determines the action and prevents a judgment;
    Richland County App. Case No. 2011CA0071                                                 8
    {¶28} “(2) An order that affects a substantial right made in a special proceeding
    or upon a summary application in an action after judgment.”
    {¶29} In In re Adams, 
    115 Ohio St.3d 86
    , 
    2007-Ohio-4840
    , 
    873 N.E.2d 886
    , a
    trial court denied a children-services agency's motion to modify an order granting it
    temporary custody to an order of permanent custody. The agency then appealed and
    the appellate court dismissed the agency's appeal of the denial for lack of a final,
    appealable order. The Ohio Supreme court affirmed. The Ohio Supreme Court held
    that a children services agency did not have a substantial right in the permanent
    custody of children based on the fact that the agency had temporary custody of
    children. The Ohio Supreme Court further held, in relevant part, as follows: “A trial court
    order denying the motion of a children-services agency to modify temporary custody to
    permanent custody and continuing temporary custody is not a final, appealable order
    under R.C. 2505.02(B)(1) or (2).” Id. at ¶35. The court in such case noted that “the
    continuation of the agency's temporary custody does not determine the outcome of the
    action for neglect and dependency. Instead, all parties remain subject to further court
    order during the temporary-custody phase. A juvenile court has several ultimate
    dispositional options pursuant to R.C. 2151.415(A), and ordering the continuation of
    temporary custody does not preclude the juvenile court from exercising any of these
    options.” Id
    {¶30} We find, similarly, that the denial of the motion to terminate parental rights
    was not a final, appealable order. There is no substantial right involved in this case.
    Pursuant to R.C. 2505.02 (A)(1), substantial right means a right that the United States
    Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
    Richland County App. Case No. 2011CA0071                                                                9
    entitles a person to enforce or protect. There is no substantial right to terminate one’s
    parental rights and obligations.          R.C. 2151.413 contemplates that only a public or
    private children services agency, not a private party, can file a motion for permanent
    custody. See also In the Matter of: P.T., 5th District No. 2011CA00200, 
    2012-Ohio-1287
    at Fn. 1.      Moreover, as noted by appellee, the trial court in this case “clearly
    contemplated continued proceedings in the underlying dependency action…”                            It is
    possible that appellant’s parental rights may be terminated further on in this case.
    Because the order denying the motion to terminate parental rights is not a final,
    appealable order, this Court lacks jurisdiction to review the same until the final
    disposition of this case.2
    {¶31} Furthermore, assuming, arguendo, that the order appealed from was a
    final, appealable order, we find that appellant did not timely appeal from the same. The
    original order was issued by the trial court on June 30, 2011. Appellant, on July 7,
    2011, filed an objection to such decision. The same was denied on July 11, 2011.
    Appellant’s Notice of Appeal was then filed on August 10, 2011.
    {¶32} Appellant had no right to file objections to the trial court’s June 30, 2011,
    order if it were a final, appealable order. Appellant would have had to file his notice of
    appeal within thirty days of the June 30, 2011, order. His Notice of Appeal, therefore,
    was filed beyond the requirement of App.R. 4 for the timely filing of an appeal of the trial
    court’s June 30, 2011, order.
    2                                                                            th
    See In Re A.P., 
    196 Ohio App.3d 500
    , 
    2011-Ohio-5998
    , 
    964 N.E.2d 56
    , 9 (Dist.), in which the Court
    held that the denial of a maternal grandmother’s motion for legal custody or expanded visitation was not a
    final, appealable order because it did not decide the case and was not a final, dispositional order.
    Richland County App. Case No. 2011CA0071                                                10
    IV
    {¶33} Appellant, in his fourth assignment of error, argues that the trial court
    erred when, in its July 11, 2011, Judgment Entry, it referred to appellant’s motion to
    terminate shared parenting plan and motion to terminate parental rights as frivolous.
    {¶34} Based on our disposition of appellant’s first through third assignments of
    error, appellant’s fourth assignment of error is moot.
    {¶35} Appellant’s fourth assignment of error is, therefore, overruled.
    {¶36} Accordingly, the appeal is dismissed.
    By: Edwards, J.
    Delaney, P.J. and
    Farmer, J. concur
    ______________________________
    ______________________________
    ______________________________
    JUDGES
    JAE/d0125
    [Cite as Richland Cty. Children Servs. Bd. v. Adam, 
    2012-Ohio-2596
    .]
    IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    RICHLAND COUNTY CHILDREN                              :
    SERVICES BOARD                                        :
    :
    Plaintiff-Appellee        :
    :
    :
    -vs-                                                  :        JUDGMENT ENTRY
    :
    SPENCER A. ADAM                                       :
    :
    Defendant-Appellant            :        CASE NO. 2011CA0071
    For the reasons stated in our accompanying Memorandum-Opinion on file, the
    appeal is dismissed. Costs assessed to appellant.
    _________________________________
    _________________________________
    _________________________________
    JUDGES
    

Document Info

Docket Number: 2011CA0071

Judges: Edwards

Filed Date: 6/7/2012

Precedential Status: Precedential

Modified Date: 10/30/2014