[Cite as Green v. Evans , 2021-Ohio-498.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

TERESA ANN GREEN : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. John W. Wise, J. : Hon. Patricia A. Delane y , J. -vs- : : Case No. 2020AP030011 : DREW EVANS : KARLEA EVANS : : Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division Case No. 2019CC00308

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 23, 2021

APPEARANCES:

For Plaintiff-Appellant: For Defendants-Appellees: SETH W. ARKOW DREW EVANS, PRO SE 1435 Market Ave. North 400 South Stree t Canton, OH 44714 Bowerston, OH 44695 TUSCARAWAS CO. DJFS KARLEA EVANS, PRO SE 389 16 th Street SW 129 Sea Gull Dr. SE New Philadelphia, OH 44663 New Ph iladelphia, OH 44663Tuscarawas County, Case No. 2020AP030011 2

Delaney, J. {¶1} Plaintiff-appellant Teresa Ann Green (“Grandmother”) appea ls from the December 5, 2019 Judgment Entry of the Tuscarawas County Court of Common Pleas, Juvenile Division. Defendants-appellees Drew Evans (“Father”) and Karlea Evans (“Mother”) did not appear in this appeal. Tuscarawas County De partment of Job and Family Services (the “Agency”) appeared as an associated party.

FACTS AND PROCEDURAL HISTORY {¶2} Mother and Father are the parents of D.E. and K.E., both m inors. Grandmother is the children’s paternal grandmother. Dependency action: 18 JN 00377 {¶3} The instant appeal arose from a separate dependency action , trial court Case Number 18 JN 00377, filed by the Agency on December 5, 201 8. A case plan was initiated for the family and the children were placed in foster care pursuant to the Agency’s award of temporary custody. Mother and Father failed to remedy the conditions that led to removal of the children. The Agency filed a motion for perm anent custody on October 20, 2019. {¶4} Grandmother sought to intervene in the dependency action a nd her motion

was overruled. Grandmother’s separate complaint for custody: 2019 CC 308 {¶5} Grandmother filed her own complaint for custody on Decembe r 10, 2019, seeking custody from Mother and Father. When the complaint was filed, however, the children were in the temporary custody of the Agency and had be en in foster care for a

year.Tuscarawas County, Case No. 2020AP030011 3

{¶6} Grandmother’s complaint for custody was set for hearing be fore a magistrate on January 24, 2020. The hearing was later canceled and the matter was held in abeyance pending the outcome of the dependency action. {¶7} On January 23, 2020, the dependency action was resolved wh en the trial court granted permanent custody of the children to the Agency. {¶8} Relevant to Grandmother’s claims in the instant appeal, th e Judgment Entry granting permanent custody to the Agency in Case Number 18 JN 0 0377 addressed Grandmother’s request for custody in pertinent part:

* * * *. The Court also received testimony from [Grandmother] who wishes to be given custody of the children in this case. [The Agency] is not in favor of this placement. Based upon the testimony of [Grandmother], the Court finds the emotional stability and judgment of [Grandmother] to be ver y questionable. The Court finds it is not in the best interest o f these children to be placed in the custody of [Grandmother].

* * * *. {¶9} On February 24, 2020, Grandmother moved the trial court fo r a hearing in Case Number 2019 CC 308. The next day, the trial court dismiss ed Grandmother’s complaint for custody. {¶10} Grandmother now appeals from the trial court’s judgment e ntry of February 25, 2020. {¶11} Grandmother raises one assignment of error:Tuscarawas County, Case No. 2020AP030011 4

ASSIGNMENT OF ERROR {¶12} “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

REVERSIBLE ERROR WHEN IT OVERRULED APPELLANT’S OBJECTION AND PERMITTED, WITHOUT HEARING, THE DISMISSAL OF THE APPELLANT’S

MOTION.”

ANALYSIS {¶13} In her sole assignment of error, Grandmother argues the t rial court erred in dismissing her complaint for custody. We disagree. {¶14} Grandmother appeals from the decision in Case Number 2019 CC 308. We note all of the judgment entries attached to Grandmother’s brie f arise from Case Number 18 JN 00377, the dependency action. The trial court’s decision granting permanent custody to the Agency is presently being appealed by Mother. {¶15} The judgment entries in the dependency action are instruc tive, however, because they indicate Grandmother’s attempt to intervene, and h er request for custody, were considered by the trial court. Grandmother testified at se veral hearings including the permanent custody hearing; her request for custody was consider ed; but the trial court determined the best interests of the children were served by pl acing them in the permanent custody of the Agency. {¶16} We return, then, to Grandmother’s argument in the instant appeal: her due process rights were violated by the trial court’s decision to d ismiss her complaint for custody. As the Agency points out, when Grandmother’s complain t for custody was filed, the children were already in the temporary custody of the Agenc y. Grandmother’s request for custody could only be litigated via the earlier dependency action. It is evident from theTuscarawas County, Case No. 2020AP030011 5

procedural history supra that Grandmother was heard, her reques t was considered, and it was ultimately denied. {¶17} The cases cited by Grandmother do not support her positio n that the trial court was required to entertain her complaint for custody indep endent of the dependency action. Custody issues are some of the most difficult and agon izing decisions a trial court judge must make. P.K. v. J.V. , 5th Dist. No. 2018CA00050, 2018-Ohio-5383, 128 N.E.3d 813, ¶ 33. The trial court judge must have wide latitude in co nsidering all the evidence.

Girdlestone v. Girdlestone , 5th Dist. Stark No. 2016CA00019, 2016-Ohio-8073, 2016 WL 7159193, ¶ 12, citing Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). It is for this reason we review custody decisions under an abus e-of-discretion standard.

Miller v. Miller , 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988). In order to find an abuse of discretion, a reviewing court must find that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶18} It is well-settled that a juvenile court may adjudicate c ustodial claims brought by nonparents at law. In re Bonfield , 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 43. Grandmother asserts her claim arose pursuant to R.C. 2151.23(A)(2), which gives the juvenile court exclusive jurisdiction to determ ine the custody of any child not a ward of another court of the state. In the instant case, however, there was already a pending dependency action pursuant to 2151.23(A)(1) and the c hildren were already in the Agency’s temporary custody. {¶19} According to the plain language of R.C. 2151.23(A)(1), th e juvenile court has exclusive original jurisdiction concerning the children onc e a complaint was filedTuscarawas County, Case No. 2020AP030011 6

alleging them to be dependent children. See, In re Poling , 64 Ohio St.3d 211, 1992-Ohio144, 594 N.E.2d 589 (1992). Grandmother’s competing belated co mplaint for custody pursuant to R.C. 2151.23(A)(2) should have been resolved in the dependency case, and the record before us indicates it effectively was. The grants of jurisdiction in R.C. 2151.23(A)(1) and (A)(2) are independent of each other. Poling , supra, citing In re Torok , 161 Ohio St. 585, 120 N.E.2d 307 (1954). The Agency was grante d temporary custody of the children in the separate dependency action; the juvenile court did not have jurisdiction to hear Grandmother’s independent, subsequent comp laint for custody pursuant to R.C. 2151.23(A)(2). See, State ex rel. Swanson v. Hague , 11th Dist. Ashtabula No. 2009-A-0053, 2010-Ohio-4200 [prior custody order issued in separate action and grandparent’s allegations not sufficient to state a viable independent dependency claim, therefore juvenile court’s lack of jurisdicti on over grandparent’s separate complaint patent and unambiguous]. {¶20} Grandmother was not foreclosed from participation in the dependency action. She sought to intervene and the motion was heard at th e December 3, 2019 annual review hearing, at which Grandmother testified. The mot ion to intervene was denied in the trial court’s judgment entry of December 5, 2019. Grandmother did not appeal from that judgment. See, In re J.R.A. , 4th Dist. Washington No. 13CA18, 2014- Ohio-4463, ¶ 29 [separate custody motion not properly before th e court when juvenile court’s temporary custody order was final and appealable]. {¶21} We conclude the trial court did not abuse its discretion in dismissing Grandmother’s complaint for custody. The sole assignment of er ror is overruled.Tuscarawas County, Case No. 2020AP030011 7

CONCLUSION {¶22} Grandmother’s sole assignment of error is overruled and t he judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed. By: Delaney, J., Gwin, P.J. and Wise, John, J., concur.