[Cite as In re K.M.P., 2022-Ohio-466.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

IN RE K.M.P. : 

 : No. 110569 

A Minor Child : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: VACATED IN PART; AFFIRMED IN PART

RELEASED AND JOURNALIZED: February 17, 2022

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. DL20109942 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Joseph C. Young, Assistant Prosecuting 

Attorney, for appellant. 

Rachel A. Kopec, for appellee. 

MARY EILEEN KILBANE, J.: 

Appellant Cuyahoga County Division of Children and Family Services 

(“CCDCFS” or “the agency”) appeals from the trial court’s judgment awarding 

custody of K.M.P. to CCDCFS and the Ohio Department of Youth Services (“ODYS”) 

contemporaneously. For the reasons that follow, we vacate the portion of the 

judgment granting emergency temporary custody to CCDCFS. 
Factual and Procedural History 

On November 19, 2020, the state of Ohio filed a complaint alleging 

that K.M.P. (d.o.b. June 27, 2003) was delinquent. On April 20, 2021, K.M.P. 

entered a plea to one count of aggravated robbery, one count of felonious assault, 

and one count of attempted grand theft. Following this plea, K.M.P. was adjudicated 

delinquent. A magistrate’s decision was issued, and in an April 22, 2021 journal 

entry, the court adopted the magistrate’s decision and made the following findings, 

in relevant part: 

[As] part of the plea agreement, the child agrees to a term of 

confinement at the Ohio Department of Youth Services [(“ODYS”)]. 

The Court proceeded on the previously filed Notice of Intent to grant 

Emergency Temporary Custody to Cuyahoga County Department of 

Children and Family Services (CCDCFS) which was held in abeyance 

on April 15, 2021. The Agency objected. 

The Court finds that it would be contrary to the child’s best interest to 

remain in the custody of the mother. 

The Court finds that reasonable efforts to prevent the removal of the 

child from the custody of his parent were not able to be made because 

the mother has refused any contact with CCDCFS, the probation 

department, or the child’s attorney and guardian ad litem. Further, the 

Court notes that the child has had no contact with his mother for 

approximately two years and the mother is reported to have moved out 

of state. 

The court went on to commit K.M.P. to a total indefinite period of confinement of a 

minimum period of three years and a maximum period not to exceed his attainment 

of the age of 21. The court found that the seriousness of K.M.P.’s offenses 

necessitated a term of ODYS confinement. 
On April 23, 2021, the agency filed objections to the magistrate’s 

decision. On May 25, 2021, the trial court overruled the agency’s objections. On 

May 27, 2021, the agency filed a timely notice of appeal. 

Legal Analysis 

The agency presents one assignment of error for our review, asserting 

that the trial court’s order placing K.M.P. into the emergency custody of CCDCFS 

while simultaneously committing him to the legal custody of ODYS is contrary to 

law. We agree. 

Because CCDCFS is challenging the juvenile court’s authority to place 

a juvenile in the temporary custody of CCDCFS while simultaneously committing 

him to the legal custody of ODYS, the issue before this court involves a claimed error 

of law. Where the trial court misstates the law or applies the law incorrectly, giving 

rise to a purely legal question, appellate review is de novo. N.S. v. C.E., 6th Dist. 

Huron No. H-17-006, 2017-Ohio-8613, ¶ 10, citing Terry v. Ottawa Cty. Bd. Of 

Mental Retardation & Dev. Delay, 165 Ohio App.3d 638, 2006-Ohio-866, 847 

N.E.2d 1246, ¶ 13 (6th Dist.). A trial court’s error in law is grounds for reversal. Id., 

citing Andrew W.P. v. Jessy Z., 177 Ohio App.3d 837, 2008-Ohio-4124, 896 N.E.2d 

220, ¶ 34 (6th Dist.). 

The purpose of the child protection statutes codified in Chapter 2151 

of the Revised Code is generally 

to provide for the care, protection, and mental and physical 

development of children subject to [this chapter], whenever possible, 

in a family environment, separating the child from the child’s parents 
only when necessary for the child’s welfare or in the interests of public 

safety. 

R.C. 2151.01(A). The purpose of the delinquency statutes codified in Chapter 2152 

of the Revised Code is generally 

to provide for the care, protection, and mental and physical 

development of children subject to this chapter, protect the public 

interest and safety, hold the offender accountable for the offender’s 

actions, restore the victim, and rehabilitate the offender. These 

purposes shall be achieved by a system of graduated sanctions and 

services. 

R.C. 2152.01(A). 

Chapter 2151 of the Ohio Revised Code empowers juvenile courts to 

make custody determinations, including grants of temporary custody and legal 

custody. R.C. 2151.011(B)(55) defines “temporary custody” as “legal custody of a 

child who is removed from the child’s home, which custody may be terminated at 

any time at the discretion of the court or, if the legal custody is granted in an 

agreement for temporary custody, by the person who executed the agreement.” R.C. 

2151.011(B)(21) defines “legal custody” as 

a legal status that vests in the custodian the right to have physical care 

and control of the child and to determine where and with whom the 

child shall live, and the right and duty to protect, train, and discipline 

the child and to provide the child with food, shelter, education, and 

medical care, all subject to any residual parental rights, privileges, and 

responsibilities. 

Generally, Juv.R. 13 empowers juvenile courts to “make such 

temporary orders concerning the custody or care of a child who is the subject of the 

complaint as the child’s interest and welfare may require.” In serious cases, such as 

the instant case, in which a child is adjudicated delinquent for committing an act 
that would be a felony if committed by an adult, “the juvenile court may commit the 

child to the legal custody of the department of youth services for secure 

confinement.” R.C. 2152.16(A)(1). 

In the context of a permanent commitment — “a commitment that 

vests legal custody of a child in the department of youth services” — legal custody is 

defined as: 

A legal status in which the department has the following rights and 

responsibilities: the right to have physical possession of the child; the 

right and duty to train, protect, and control the child; the responsibility 

to provide the child with food, clothing, shelter, education, and medical 

care; and the right to determine where and with whom the child shall 

live; subject to the minimum periods of, or periods of, institutional care 

prescribed in sections 2152.13 to 2152.18 of the Revised Code; 

provided, that these rights and responsibilities are exercised subject to 

the powers, rights, duties, and responsibilities of the guardian of the 

person of the child, and subject to any residual parental rights and 

responsibilities. 

R.C. 5139.01(A)(2) and (3). 

Juvenile courts are courts of limited jurisdiction whose powers are 

created solely by statute. In re J.D., 172 Ohio App.3d 288, 2007-Ohio-3279, 874 

N.E.2d 858, ¶ 8 (10th Dist.), citing Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio7107, 821 N.E.2d 180, ¶ 25. Thus, the juvenile court is not authorized to issue a 

contemporaneous custody order unless it possesses the statutory authority to do so. 

We acknowledge that the juvenile court has broad discretion to fashion orders 

specifically tailored to address each juvenile’s particular needs. In re Walker, 10th 

Dist. Franklin No. 02AP-421, 2003-Ohio-2137, ¶ 22. In this case, the court placed 

the juvenile in the custody of both CCDCFS and ODYS. Pursuant to the foregoing 
sections of the Ohio Revised Code, the juvenile court is statutorily authorized to 

commit custody of a juvenile to CCDCFS or ODYS depending on the particular 

circumstances of a given case. The Ohio Revised Code does not, however, authorize 

the juvenile court to commit a juvenile to custody of both entities simultaneously. 

With respect to both CCDCFS and ODYS, a grant of legal custody 

empowers the custodian to determine where the child shall live. R.C. 

2151.011(B)(21); R.C. 5139.01(A)(3). While both entities are concerned with the care 

and shelter of the juveniles in their custody, Ohio law delineates distinct 

considerations for each entity in determining where a juvenile in their custody 

should be placed. While the juvenile court has broad discretion to tailor orders to 

the needs of each juvenile, that discretion is of course limited by the court’s statutory 

authority. 

Absent from the chapters of the Ohio Revised Code governing 

juvenile courts and the agencies involved in this case is any contemplation of 

competing custody orders like the one at issue in this case. Ohio law provides no 

guidance as to how ODYS and CCDCFS might possibly reconcile their competing 

goals and considerations when determining the appropriate placement for a juvenile 

within their care. The appellee is correct that the Ohio Revised Code does not 

explicitly prohibit CCDCFS and ODYS from having custody of a child at the same 

time. We reiterate, however, that our review is concerned with whether the juvenile 

court possesses the statutory authority to issue a competing custody order to both 

CCDCFS and ODYS. Based on the foregoing, we conclude that it does not. 
The magistrate in this case was concerned that ODYS would not 

accept a juvenile who does not have a guardian available to receive documents or 

make medical decisions related to the juvenile’s care. While we understand the 

magistrate’s concerns about the severe lack of parental supervision, and the way in 

which the juvenile court attempted to address these concerns, our analysis of the 

relevant law leads us to conclude that the juvenile court lacked the authority to issue 

a competing custody order. 

For these reasons, we vacate the portion of the juvenile court’s order 

placing K.M.P. in the emergency temporary custody of CCDCFS. The agency’s 

assignment of error is sustained. 

Judgment vacated in part and affirmed in part. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

ANITA LASTER MAYS, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR