In re Poling - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
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volumes of the Ohio Official Reports.
In re Poling et al., Alleged Dependent Minors.
[Cite as In re Poling (1992), Ohio St.3d .]
Courts -- Juvenile court has jurisdiction to determine
custody of child alleged to be abused, neglected or
dependent, when -- R.C. 2151.23(F)(1), construed and
applied.
1. Pursuant to R.C. 2151.23(A), the juvenile court has
jurisdiction to determine the custody of a child
alleged to be abused, neglected, or dependent, when
that child is not the ward of any court in this
state. This jurisdiction includes children subject to
a divorce decree granting custody pursuant to R.C.
3109.04.1
2. When a juvenile court makes a custody determination
under R.C. 2151.23 and 2151.353, it must do so in
accordance with R.C. 3109.04. (R.C. 2151.23[F][1],
construed and applied.)
(No. 91-1315 -- Submitted May 12, 1992 -- Decided July 22,
1992.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-8.
Charles Poling, Sr., appellant, and Connie Poling,
appellee, were married in 1982. Two children were born of the
marriage: Charles, Jr., on September 6, 1982, and Mary, on
November 29, 1983. In 1987, Charles, Sr. abandoned his wife
and two children to live with another woman in Arizona, and
then later in Florida. During this time, Connie provided for
the care and support of the children. Connie and Charles, Sr.
were eventually divorced, with custody being granted to her
pursuant to former R.C. 3109.04. It is undisputed that the
custody determination was made as part of the divorce decree
entered by the Franklin County Common Pleas Court, Domestic
Relations Division.
On September 21, 1989 Franklin County Children Services
("F.C.C.S.") filed a neglect and dependency action in the
Franklin County Juvenile Court, alleging lack of proper
parental care for and supervision of Mary and Charles, Jr.
According to F.C.C.S., the custodial parent left the children
unsupervised at various times. Apparently, school security

brought Mary to F.C.C.S. because Connie was not at home when
the child returned from school on September 20. F.C.C.S. also
confirmed that Charles, Jr. was left unattended that same day,
and that school officials previously reported a similar
incident. A temporary order of custody was issued to F.C.C.S.
on September 22, 1989. On or about that date, F.C.C.S. placed
the physical custody of both children with Charles, Sr., who
was by then living in Ohio, and the children have continued to
live with him and his new family since that time.
While the action in neglect and dependency was pending,
F.C.C.S. and the Columbus police investigated charges of sexual
abuse of Mary and possibly Charles, Jr., allegedly involving
Connie's neighbor and friend. The neighbor was arrested and
convicted of criminal charges; he is now deceased. Evidence in
the record suggests that Connie was not aware of any sexual
abuse of her children, and there was never a factual finding to
the contrary. The prosecution dismissed the neglect count and
an uncontested hearing on the dependency action was held before
a referee on December 11, 1989. The referee recommended that
the court find by clear and convincing evidence that both Mary
and Charles, Jr. were "dependent minor children" as defined in
R.C. 2151.04(C). The referee also recommended that Charles,
Jr. and Mary be made wards of the court and that F.C.C.S. be
awarded temporary custody of both children, said custody to
continue until further order of the court. The juvenile court
adopted the recommendation in a judgment entry filed December
29, 1989.
In January 1990, Charles, Sr. filed a motion for a
reevaluation of custody, and Connie likewise filed a motion for
custody. Both motions were denied by the juvenile court.
However, on June 6, 1990, F.C.C.S. filed a motion requesting
the juvenile court to exercise its continuing jurisdiction to
terminate the temporary custody order and grant custody of the
children to Charles Poling, Sr. After a three-day hearing, the
referee, in September 1990, recommended that custody be awarded
to Charles, Sr. Connie filed objections to the report and
recommendation of the referee. The objections were overruled
and the juvenile court adopted the recommendation that legal
custody be awarded to Charles, Sr. The juvenile court
sustained an objection as to the issue of visitation and
granted Connie visitation every other weekend and one month in
the summer.
Upon appeal, the court of appeals reversed, holding that
although the juvenile court had jurisdiction to terminate the
temporary custody of F.C.C.S., under the facts of this case the
juvenile court was not within its jurisdiction to enact a
change of custody and grant legal custody to Charles, Sr. The
appellate court reasoned that since the parties were once
married and Connie had been granted legal custody pursuant to
former R.C. 3109.04, "legal custody can only be granted to
[Charles, Sr.] * * * pursuant to a change of custody as
prescribed in R.C. 3109.04(B)." Moreover, that court
determined that the record was devoid of any indication that
the juvenile court acquired jurisdiction over the custody
matter of this case by virtue of certification as set forth in
R.C. 2151.23(D). The court of appeals concluded that "[t]he
effect of the trial court's disposition of this case was to

grant a change of custody pursuant to R.C. 3109.04(B) when it
had no authority or jurisdiction to make that disposition."
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Raymond L. Eichenberger, for appellant.
Eric J. Hoffman, for appellee.
James Kura, County Public Defender, and Paul Skendellas,
guardian ad litem, for Charles, Jr. and Mary Poling.

Alice Robie Resnick, J. The issue before this court is
whether a juvenile court has jurisdiction to consider the
question of custody of dependent children, where custody has
previously been determined and granted under a divorce decree
pursuant to R.C. 3109.04. Appellant asserts that R.C. 2151.23
confers upon the juvenile court exclusive jurisdiction over the
disposition of dependent children. The guardian ad litem
supports this position, and also contends that pursuant to R.C.
2151.353 a juvenile court has jurisdiction to make an award of
legal custody concerning any child who has been adjudicated a
dependent minor.
Our analysis begins with R.C. 2151.23, which governs the
jurisdiction of the juvenile court and provides in pertinent
part:
"(A) The juvenile court has exclusive original
jurisdiction under the Revised Code:
"(1) Concerning any child who on or about the date
specified in the complaint is alleged to be a[n] * * * abused,
neglected, or dependent child;
"(2) To determine the custody of any child not a ward of
another court of this state[.]" (Emphasis added.)
According to the plain language of R.C. 2151.23(A)(1), the
juvenile court had exclusive original jurisdiction concerning
Charles, Jr. and Mary once a complaint was filed alleging them
to be dependent children. In other words, under R.C.
2151.23(A)(1), the juvenile court was vested with jurisdiction
to hear and determine the allegations in the complaint and to
make a lawful disposition concerning Charles, Jr. and Mary
(provided that they were not wards of another court of the
state). R.C. 2151.353(A) involves the disposition of abused,
neglected or dependent children, and states in pertinent part:
"If a child is adjudicated an abused, neglected or dependent
child, the court may make any of the following orders of
disposition: * * *." The statute proceeds to list five ways
in which a juvenile court may determine the custody, care and
supervision of the children. The question then becomes whether
a disposition under R.C. 2151.353 concerning a dependent child
may include a change of custody where custody has previously
been determined in a divorce action pursuant to R.C. 3109.04.
In this context, R.C. 2151.23(A)(2) provides some
guidance. We initially note that this court has previously
held that the grants of jurisdiction in R.C. 2151.23(A)(1) and
(A)(2) are independent of each other, and that "[i]n order to
determine * * * custody, it is not necessary for the [juvenile]
court to find first that such child is * * * dependent * * *.
In re Torok (1954), 161 Ohio St. 585, 53 O.O. 433, 120 N.E.2d
307, at paragraph two of the syllabus. When read literally,

R.C. 2151.23(A)(2) states that "[t]he juvenile court has
exclusive original jurisdiction under the Revised Code * * *
[t]o determine the custody of any child not a ward of another
court of this state[.]" For our purposes the key phrase in
R.C. 2151.23(A)(2) is "a ward of another court." If children
whose custody is determined under a divorce decree, pursuant to
R.C. 3109.04, are construed to be "wards" of that court, then a
juvenile court would not have jurisdiction to determine their
custody under R.C. 2151.23(A)(2). However, for the reasons
which follow, we do not construe the term "ward" to include
children whose custody is granted pursuant to a divorce decree.
Generally, a "ward" is "[a] person, especially a child or
incompetent, placed by the court under the care and supervision
of a guardian or conservator." "Wards of the court" are
"[i]nfants and persons of unsound mind placed by the court
under the care of a guardian." Black's Law Dictionary (6 Ed.
1990) 1583-1584. A ward is commonly associated with a
guardianship, which is "* * * established because of the ward's
inability to legally act on his or her own behalf * * *." Id.
at 707, defining "guardianship." When a court in a divorce
case grants custody of a child, the court is not traditionally
placing itself in the position of guardian of that child.
Rather, in a broad sense the court is making a judicial
determination as to whom the child's custodian is to be,
whether it be a parent or otherwise. Nor does the court
consider the child a "ward" of that court, even though the
court retains jurisdiction to modify custody and support.
Hence, we conclude that the phrase any child not a "ward of
another court" in R.C. 2151.23(A)(2) cannot be construed to
prohibit a juvenile court from changing custody of children
subject to a divorce decree entered pursuant to former R.C.
3109.04. Such an interpretation would strain the definition of
"ward" well beyond its common meaning.
Based on the above, a juvenile court has jurisdiction
under R.C. 2151.23(A)(1) and 2151.353, respectively, to
determine the disposition, including custody, of children
alleged to be abused, neglected, or dependent. We hold that
pursuant to R.C. 2151.23(A), the juvenile court has
jurisdiction to determine the custody of a child alleged to be
abused, neglected, or dependent when not the ward of any court
in this state. Under our interpretation of subdivision (A)(2)
of R.C. 2151.23, this jurisdiction includes children subject to
a divorce decree granting custody pursuant to R.C. 3109.04.
While clarifying the jurisdiction of the juvenile court
under R. C. 2151.23, we recognize some confusion exists in
light of the continuing jurisdiction of the domestic relations
court which awards custody in divorce cases under R.C.
3109.04. Particularly, this becomes apparent when considering
the case of Loetz v. Loetz (1980), 63 Ohio St.2d 1, 2, 17
O.O.3d 1, 406 N.E.2d 1093, 1094, wherein we reiterated that
"[t]he court in which a decree of divorce is originally
rendered retains continuing jurisdiction over matters relating
to the custody, care, and support of the minor children of the
parties. Hoffman v. Hoffman (1864), 15 Ohio St. 427; Addams v.
State ex rel. Hubbell (1922), 104 Ohio St. 475, 135 N.E. 667;
Corbett v. Corbett (1930), 123 Ohio St. 76 [9 Ohio Law Abs.
58], 174 N.E. 10; Van Divort v. Van Divort (1956), 165 Ohio St.

141 [59 O.O. 207], 134 N.E.2d 715."
Therefore, a court which renders a custody decision in a
divorce case has continuing jurisdiction to modify that
decision. However, the juvenile court has jurisdiction to make
custody awards under certain circumstances. Hence, for the
purposes of deciding custody where there has been a prior
divorce decree, these courts can accurately be said to have
concurrent jurisdiction. In other words, the juvenile court
may entertain and determine custody of children properly
subject to its jurisdiction, even though there has been a prior
divorce decree granting custody of said children to a parent
pursuant to R.C. 3109.04.2
Both appellant and the guardian ad litem advance judicial
economy arguments to buttress their assertion that the juvenile
court has jurisdiction to decide the custody issue in this
case. They contend the juvenile court is in a position to hear
all the relevant evidence concerning the child's environment
and needs, and that it is a waste of judicial time and
resources to then require additional hearings in the original
divorce court to determine custody of the children.
We agree. The issues and facts relating to the
disposition or custody of these children will have been
examined in the juvenile court. In deciding how to best
address the needs and interests of the children, the juvenile
court would have before it home investigations germane to the
case, psychological assessments, special educational or
treatment concerns, relevant testimony from the pertinent
parties, and the recommendation of both the county children
services agency and the guardian ad litem. To now hold that
the juvenile court does not have jurisdiction would require the
original divorce court to possibly rehear the entire case, at a
considerable cost not only to the judicial system but more
importantly to the parties involved. This is especially true
with respect to children whose well-being mandates an
effective, timely means of resolving their care and custody.
However, when a juvenile court seeks to exercise its
concurrent jurisdiction in a situation such as before us, i.e.,
where there is an existing custody decree, the juvenile court
must do so in compliance with R.C. 2151.23(F)(1). This statute
requires that "[t]he juvenile court shall exercise its
jurisdiction in child custody matters in accordance with
sections 3109.04, 3109.21 to 3109.36, * * * of the Revised
Code." (Emphasis added.) Therefore, when a juvenile court
makes a custody determination, it must do so "in accordance
with R.C. 3109.04."
We view this legislative scheme as a means of granting the
juvenile court jurisdiction to make particularized
determinations regarding the care and custody of children
subject to its jurisdiction, while respecting the continuing
jurisdiction of the domestic relations or common pleas court
that makes a custody decision in a divorce case. Stated
otherwise, when a domestic relations or common pleas court
makes a custody decision ancillary to a divorce proceeding,
that court must comply with the strictures contained in R.C.
3109.04. Likewise, under R.C. 2151.23(F)(1), a juvenile court
must consider the dictates of R.C. 3109.04 when exercising its
custody jurisdiction. The juvenile court's custody decision is

thus harmonized with the prior custody determination by the
requirement in R.C. 2151.23(F)(1) that the juvenile court
exercise its custody jurisdiction in accordance with R.C.
3109.04.
In the present case Connie Poling was awarded custody of
Charles, Jr. and Mary under the divorce decree. Former R.C.
3109.04(B) -- which is now essentially R.C. 3109.04(E)(1)(a) --
controls the modification of a custody determination granted as
part of a divorce proceeding. R.C. 2151.23(F)(1) requires the
juvenile court to exercise its custody jurisdiction "in
accordance with" former R.C. 3109.04. Specifically relevant to
this case is former R.C. 3109.04(B)(1), which provided in part:
"Except as provided in division (B)(2) of this section,
the court shall not modify a prior custody decree unless it
finds, based on facts that have arisen since the prior decree
or that were unknown to the court at the time of the prior
decree, that a change has occurred in the circumstances of the
child, his custodian, or either joint custodian, and that the
modification is necessary to serve the best interest of the
child. In applying these standards, the court shall retain the
custodian or both of the joint custodians designated by the
prior decree, unless one of the following applies:
"(a) The custodian or both joint custodians agree to a
change in custody.
"(b) The child, with the consent of the custodian or of
both joint custodians, has been integrated into the family of
the person seeking custody.
"(c) The child's present environment endangers
significantly his physical health or his mental, moral, or
emotional development and the harm likely to be caused by a
change of environment is outweighed by the advantages of the
change of environment to the child." (140 Ohio Laws, Part I,
1843.)
The juvenile court's judgment, as reflected in the
referee's report and recommendation, contains no reference to
former R.C. 3109.04(B). In fact, the referee specifically
determined in his September 1990 report as follows:
"Connie Poling has substantially complied with the
provisions of the case plan approved by the Court. She has
been consistent in her visitation, she has maintained and
improved in housekeeping and she has successfully completed
parenting classes. Connie Poling exhibits good interaction
with her children, is bonded with them, and is a concerned and
loving parent. While mother has had psychiatric problems in
the past, she regularly takes medication and is faithful in her
counseling. Her mental health is not a current problem.
"* * *
"There are no current indications that either parent is
incapable of providing care and protection of the children. As
such there is no need for continued custody with Franklin
County Children Services. Given the fact that mother's
location is upsetting to the children, and as the children are
doing well in the father's home, it is not in their best
interests, at this time, for the mother to resume custody.* * *"
From the above, it appears that the referee granted
custody to Charles, Sr. because Connie's trailer was in close
proximity to the trailer owned by the perpetrator of sexual

crimes against Mary, which understandably upset the children
during visits. An additional reason was that the children were
doing well in Charles, Sr.'s new home. These factual
determinations fall far short of the necessary findings
required to modify custody pursuant to former R.C. 3109.04(B).
Because we hold that a juvenile court must, pursuant to R.C.
2151.23(F)(1), exercise its custody jurisdiction in accordance
with R.C. 3109.04, the juvenile court's decision in this case
must be vacated and this cause remanded to that court for
consideration of former R.C. 3109.04.3 This cause is reversed
and remanded to the juvenile court for proceedings consistent
with this opinion.
Judgment reversed
and cause remanded.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and H.
Brown, JJ., concur.
FOOTNOTES:
1 For purposes of this case, and on remand, former R.C.
3109.04 will be applied. (140 Ohio Laws, Part I, 1843.) We
are cognizant that R.C. 3109.04 has been amended, effective
April 4, 1991. The amendment, while sweeping in some aspects,
does not substantively impact our disposition of this case.
More importantly, R.C. 2151.23(F)(1) remains unchanged. Hence,
our holding is not limited by the amendment to R.C. 3109.04.
2 For this reason we disagree with the court of appeals'
holding that the juvenile court can only acquire jurisdiction
over matters of custody pursuant to a certification under R.C.
2151.23(D) and 3109.06. Rather, we interpret R.C. 2151.23(D)
as an additional grant of jurisdiction, and not a limitation.
See In re Verbanovic (Apr. 8, 1987), Mahoning App. No. 85 C.A.
66, unreported, 1987 WL 9636 (relying on our reasoning in In re
Torok [1954], 161 Ohio St. 585, 53 O.O. 433, 120 N.E.2d 307).
3 We would caution the juvenile court that a finding of
neglect, abuse or dependency may or may not, standing alone, be
sufficient to warrant a modification of custody under R.C.
3109.04. Any such finding must be decided on a case-by-case
basis, depending upon the factual pattern before that court.
R.C. Chapter 2151 does not envision a scenario in which a
noncustodial parent may seek to relitigate an adverse custody
determination. Rather, this chapter provides a means by which
the state may temporarily intervene in the family environment
on behalf of the children when such intervention is mandated.
See R.C. 2151.419(A), which requires the juvenile court to
"determine whether the public children services agency * * *
has made reasonable efforts to prevent the removal of the child
from his home, to eliminate the continued removal of the child
from his home, or to make it possible for the child to return
home."