C.H. v. O'Malley

Decision Date29 October 2019
Docket NumberNo. 2018-1191,2018-1191
Parties C.H. v. O'MALLEY, Judge, et al.
CourtOhio Supreme Court

Rosenthal Thurman, L.L.C., and Katherine A. Friedell, Cleveland, for relator.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for respondents.

Per Curiam.

{¶ 1} In this original action, relator, C.H., seeks a writ of prohibition to bar respondents, Cuyahoga County Juvenile Court Judge Jennifer L. O'Malley and her designated magistrate,1 from exercising jurisdiction over a case involving the custody of E.J.H., C.H.'s biological grandchild, In re E.J.H. , case No. CU 17 112728. On February 13, 2019, we denied a motion for judgment on the pleadings and granted an alternative writ. Upon consideration of the merits of C.H.'s arguments, we now deny the writ.

The evidence in the record

{¶ 2} A.H., C.H.'s daughter, gave birth to E.J.H. on April 22, 2005, in Maricopa County, Arizona. The birth certificate did not identify the child's father.

{¶ 3} According to the evidence that has been submitted in this case, A.H. is alleged to have addiction issues with alcohol, marijuana, and methamphetamines, which have resulted in her having been arrested and hospitalized in the past. On April 5, 2017, the Superior Court in Maricopa County issued a final order of adoption by which C.H. adopted E.J.H. In re Adoption of M.S.H. and E.J.H. , Maricopa S.C. No. JA51485.

{¶ 4} Two months later, A.H. drove from Arizona to Ohio with E.J.H., arriving at Cory Osley's home in Parma on or about June 20, 2017. Osley claims to be E.J.H.'s biological father and claims that E.J.H. has been living with him since June 20, 2017.

{¶ 5} On August 23, 2017, Osley filed an application to determine the custody of E.J.H. in the Cuyahoga County Court of Common Pleas, Juvenile Division. In re E.J.H. , Cuyahoga C.P. No. CU 17 112728. He also filed a motion for temporary emergency custody, alleging that E.J.H. "has been the victim of continual physical and emotional abuse perpetrated by his maternal grandmother, his mother and his mother's boyfriend" and that E.J.H. has "witnessed continual and habitual drug abuse by his mother and her boyfriend while under their care."

{¶ 6} In his pleadings, Osley represented that A.H. had "voluntarily relinquished possession of [their] son to [him]" and that A.H. "indicated that she wanted [their] son to reside with [him] permanently." Although Osley informed the juvenile court that E.J.H. had been residing with C.H. before June 20, 2017, he did not inform the court that C.H. had legally adopted E.J.H.

{¶ 7} The case was assigned to Judge Rini. The next day, August 24, 2017, the magistrate appointed a guardian ad litem and granted Osley temporary emergency custody so that E.J.H. could be enrolled in school. In a hearing on September 26, 2017, C.H. informed the magistrate of the Arizona adoption order. And A.H. "advised [the court] that she wished to have the child see his Father for the summer only rather than living with him." Without waiving her right to contest jurisdiction, C.H. consented to E.J.H.’s remaining in Ohio "until the next hearing." The magistrate ordered E.J.H. to be placed in Osley's temporary emergency custody.

{¶ 8} The magistrate thereafter issued orders maintaining the status quo of the case until the end of the 2017-2018 school year. According to the magistrate, "Legal Guardian [ (C.H.) ] is in agreement with the child remaining in Ohio but refuses to give up custody or consent to the jurisdiction of the State of Ohio as to custody proceedings for the child."

{¶ 9} In June 2018, the magistrate, after a hearing, rejected C.H.'s challenge to Ohio's jurisdiction over the case and set the matter for trial. Approximately one month later, a privately retained attorney appeared on C.H.'s behalf for the first time. C.H. then filed a motion asking the court to vacate all the previous orders that had been made in the case, to continue the trial date, and to order that E.J.H. be returned to the custody of C.H. On August 9, the magistrate again extended the temporary emergency-custody order and reserved judgment on the jurisdictional issue. (The resulting order was not journalized until September 4, 2018.) And on September 24, 2018, following an evidentiary hearing, the magistrate ordered E.J.H. to remain in Osley's temporary emergency custody and awarded C.H. visitation rights. The magistrate further ordered that because E.J.H. had been living in Cuyahoga County, Ohio, since June 2017, the court had jurisdiction over E.J.H.'s "immediate well being."

Procedural history

{¶ 10} C.H. commenced this action for a writ of prohibition on August 21, 2018. Respondents (collectively, "Judge O'Malley") filed an answer and a motion for judgment on the pleadings. We denied the motion and granted an alternative writ and set a briefing schedule in accordance with S.Ct.Prac.R. 12.05.

Analysis

{¶ 11} Three elements are necessary for a writ of prohibition to issue: the exercise of judicial power, the lack of authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. However, if the absence of jurisdiction is patent and unambiguous, a relator need not establish the third prong, the lack of an adequate remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.

{¶ 12} The first element is not in dispute: Judge O'Malley concedes that she has exercised, and will continue to exercise, judicial authority.

{¶ 13} With respect to the remaining elements, Judge O'Malley contends that jurisdiction exists under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The UCCJEA, codified in Ohio at R.C. Chapter 3127, gives jurisdictional priority and exclusive continuing jurisdiction to the courts of a child's "home state." Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 21. "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody proceeding * * *." R.C. 3127.01(B)(7). If Ohio is the child's home state "on the date of the commencement of the proceeding," R.C. 3127.15(A)(1), then an Ohio court has jurisdiction to make an initial determination in a child-custody proceeding, R.C. 3127.15(A).

{¶ 14} E.J.H. arrived in Ohio on or about June 20, 2017. Osley commenced the custody proceedings two months later, on August 23, 2017, less than the six months necessary to establish Ohio as E.J.H.'s home state. Therefore, Ohio did not have home-state jurisdiction over those proceedings. See Rosen at ¶ 44 (holding that the failure to satisfy the six-month requirement for home-state status is a jurisdictional defect).

{¶ 15} In her June 26, 2018 pretrial order, the magistrate concluded that the juvenile court had jurisdiction because "[t]he child ha[d] remained in Ohio for a period longer than 6 months." But the duration of the child's stay during the pendency of custody proceedings is not relevant to the jurisdictional analysis. The statute specifically requires the child to have resided in Ohio with a parent or a person acting as a parent for at least six consecutive months immediately preceding "the commencement of a child custody proceeding." (Emphasis added.) R.C. 3127.01(B)(7).

{¶ 16} Judge O'Malley appropriately concedes that Ohio did not have home-state jurisdiction over E.J.H. as of the date that Osley filed his initial custody action. But that concession does not end the home-state-jurisdiction analysis.

{¶ 17} On September 6, 2018, after C.H. filed her complaint for a writ of prohibition, Osley filed a Civ.R. 41(A)(1)(a) notice of voluntary dismissal without prejudice of his August 23, 2017 application to determine the custody of E.J.H., time-stamped by the clerk at 2:51 p.m. Six minutes later, he filed a new motion to determine custody. Simultaneously, he also filed a motion for temporary emergency custody. Although he had dismissed the first action, Osley typed the same case number—CU 17 112728—as the case number for the new motions. Linda Brooks, director of the Cuyahoga County Juvenile Court Clerk of Court, attests that "[p]ursuant to standard court operating procedures, the re-filing motion was docketed under original case number CU 17 112728."

{¶ 18} " ‘A dismissal without prejudice leaves the parties as if no action had been brought at all.’ " Denham v. New Carlisle , 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999), quoting DeVille Photography, Inc. v. Bowers , 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). Thus, by dismissing and then refiling his application, Osley commenced new custody proceedings. And by the time he filed the new application, on September 6, 2018, E.J.H. had been in Ohio continuously for over one year, more than enough time to establish home-state jurisdiction under R.C. 3127.15(A)(1).

{¶ 19} C.H. contends that the dismissal of the first application is irrelevant. According to C.H., "[i]t is the date of the first commencement of the action that matters for purposes of determining whether six months have been reached." (Emphasis sic.) But the case she cites, State ex rel. M.L. v. O'Malley , 144 Ohio St.3d 553, 2015-Ohio-4855, 45 N.E.3d 971, is distinguishable.

{¶ 20} The child in M.L. was born in Ohio in 2010, and resided in Ohio continuously through April 2011, when the father filed a custody application in Cuyahoga County. Id. at ¶ 2, 13. In May 2011, the mother moved the child to New Jersey. Id. at ¶ 2. Despite the fact that the mother was never served a copy of the father's custody application, the magistrate issued an order granting custody of the child to the father. Id. That custody order was vacated by the...

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