Opinion
Case No. CA96-07-133.
May 19, 1997.
Fred Miller, for appellants, Roger and Rhonda Smith.
Jeffrey T. Kirby, for appellee, Marietta Sue McGlothin.
T. Randall Turner, Guardian Ad Litem.
OPINION
On November 15, 1994, appellee, Marietta Sue McGlothin, sought custody of her two-year-old granddaughter, Linda Smith, by filing a complaint in Butler County Juvenile Court. The complaint alleged that the child's parents, Roger and Rhonda Smith ("the Smiths"), were unable to provide adequate care for Linda and that an award of custody to appellee was in Linda's best interest.
On March 10, 1995, the Smiths contractually relinquished legal custody of Linda to appellee in an agreed judgment entry which provided, in pertinent part, as follows:
R.C. 2151.011(B) defines the following types of custody which a juvenile court may award:
(9) "Legal custody" means 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. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.
(10) "Residual parental rights, privileges, and responsibilities" means those rights, privileges, and responsibilities remaining with the natural parent after the transfer of legal custody of the child, including, but not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support.
(11) "Permanent custody" means a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations.
(12) "Temporary custody" means 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.
The record indicates that the March 10, 1995 agreed judgment entry reserved certain residual parental rights to appellants. Therefore, we conclude that appellants contractually relinquished legal custody of Linda to appellee.
The maternal grandmother, Marietta Sue McGlothin, shall be designated the custodian of the minor child, Linda M. Smith. * * * The court finds that this designation is in the best interest of the child.
It is agreed and understood that this change is being made so that Rhonda Smith can make improvements in her life, which will benefit both her, her husband and the child in the future. Accordingly, it is agreed and understood that when Rhonda Smith has completed her high school and post-high school education towards a selfsustaining career, and has obtained that selfsustaining occupation, and continues to have a sound home environment for the child, grandmother Marietta Sue McGlothin shall cooperate in returning the child to her natural parents.
In May 1995, the Smiths filed a motion to have custody of Linda returned to them in accordance with the terms of the March 10, 1995 agreed judgment entry. A hearing on the motion was held before a magistrate on January 19, 1996. The magistrate subsequently denied the Smiths' motion for custody of Linda in an order dated June 7, 1996. The magistrate specifically found that Rhonda Smith had earned a GED, but that she had not obtained self-sustaining employment. The magistrate also found that both Roger and Rhonda Smith were unable to adequately care for Linda at that time because of their chronic financial irresponsibility and that an award of custody to the Smiths was not in Linda's best interest. The juvenile court adopted the magistrate's findings of fact and conclusions of law in an entry dated June 10, 1996. The Smiths now appeal setting forth the following assignment of error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS WHEN IT REFUSED TO RETURN CUSTODY OF LINDA TO HER PARENTS.
A juvenile court may award custody of a child to a nonparent where the child's parents have contractually relinquished custody and where an award of custody to the nonparent would be in the child's best interest. Reynolds v. Goll (1996), 75 Ohio St.3d 121, 123; In re Perales (1977), 52 Ohio St.2d 89, syllabus. Our review of the record indicates that the Smiths contractually relinquished legal custody of Linda to appellee in the March 10, 1995 agreed judgment entry. That entry specifically provided that Linda would remain in appellee's custody until Rhonda Smith is able to: (1) complete her high-school and post-high-school education; (2) obtain self-sustaining employment; and (3) maintain a stable home environment with her husband in which they could adequately care for Linda.
The record indicates that Rhonda Smith has earned her GED. However, there is no evidence in the record that Rhonda Smith has obtained self-sustaining employment or completed any program of post-high-school education as required by the March 10, 1995 agreed judgment entry. Further, it is apparent that the Smiths have engaged in an ongoing pattern of financial irresponsibility which has seriously impaired their ability to adequately care for Linda. The juvenile court applied the "best interests" test and held that an award of custody to the Smiths would not be in Linda's best interest at this time. The dissent argues at length that we are requiring strict compliance with the March 10, 1995 agreed judgment entry. We find no error by the juvenile court in considering the fact that appellants (both the mother and father) have not complied with the March 10, 1995 agreed judgment entry since this was but one portion of the "best interests" calculus. While a juvenile court is not bound by such an agreement, the court is also not prohibited from considering it as it applies to the "best interests" of the child.
Appellants nevertheless argue that they did not contractually relinquish custody of Linda within the meaning of Perales and Goll because the agreed judgment entry did not divest them of all parental rights. We are not persuaded. There is nothing in the syllabus of Perales or the text of Goll which indicates that contractual relinquishment only exists where a parent surrenders "permanent custody" of his or her child within the meaning of R.C. 2151.011(B). The March 10, 1995 agreed judgment entry specifically provided that "[t]he maternal grandmother, Marietta Sue McGlothin, shall be designated the custodian of the minor child, Linda M. Smith." This surrender of custody was certainly a contractual relinquishment within the meaning of Perales and Goll. The Smiths' sole assignment of error is overruled. The judgment of the trial court is hereby affirmed.
YOUNG, P.J., concurs separately.
WALSH, J., dissents.
It must be remembered that appellants turned over custody of the child by an agreed entry in juvenile court. At that time the court made a specific finding that the designation of Marietta Sue McGlothin as custodian was in the best interest of the child. To modify that court order, the court must again apply the best interest of the child standard to determine whether custody should be restored to the parents.
In making the determination as to what serves the best interest of the child, the court is not bound by the "conditions" recited in the original agreement. The fulfillment or nonfulfillment of those conditions is merely one factor for the court to consider in determining what is in the best interest of the child.
The evidence in this case supports the trial court's finding that an award of custody to the Smiths was not in the child's best interest at the time. Should Smiths' situation improve, the matter would then be ripe for redetermination of best interest considering the conditions then in existence.
I concur.
I disagree with the majority's conclusion that Roger and Rhonda Smith "contractually relinquished" custody of their daughter, Linda, to Marietta Sue McGlothin, thus forfeiting their natural and paramount right to Linda's custody. See Perales, 52 Ohio St.2d at 97-98. Moreover, "financial irresponsibility" in itself is not a sufficient basis for denying parents the right to their children. Therefore, I must dissent.
Parents have a "paramount" right to the custody of their minor children unless a preponderance of the evidence indicates that they are "unsuitable," a term which includes "contractual relinquishment of custody." Id. Even assuming, if only for the sake of argument, that the March 10, 1995 agreement represents an enforceable contract, I find no evidence of any intention on the part of the Smiths to "relinquish" their right to the custody of Linda by contract or otherwise. "To relinquish" is defined as "[t]o abandon" or "to renounce some right or thing." Black's Law Dictionary (5 Ed. 1979) 1161. Here, in contrast, the agreement between the Smiths and McGlothin exists solely to effect the eventual, successful reunification of parents and child. The arrangement was made to allow Linda to live with McGlothin temporarily so that Rhonda could "make improvements in her life" to "benefit * * * her, her husband, and the child." During the separation, the Smiths, far from "abandoning" Linda, retained the right to telephone and visitation privileges that were limited only by the distance between Ohio and Georgia and their financial means. Indeed, even the trial court deemed the arrangement a "non-judicial reunification plan." (Emphasis supplied.) Finally, the Smiths' motion to have custody of Linda returned to them only two months after the agreement was filed is yet another indication that the Smiths did not intend to "relinquish" their right to custody of their daughter.
The agreed entry makes, however, no mention of any obligation on the part of Roger Smith.
Because this grant of custody to McGlothin was temporary, the trial court erred by applying the statutory factors set forth in 3109.04(E)(1)(a), i.e., the change of circumstances test. In stead, the trial court should have followed the holding in In re: Carpenter (1987), 41 Ohio App.3d 182, which addressed the situation where "a parent is seeking to extinguish an award of temporary custody to a non-parent in order to re-establish custody of the child." Carpenter states:
The magistrate's decision and order states:
* * *
Conclusions of law: Parents contractually relinquished custody of child. There was no evidence of change of circumstances of the child or the residential parent or either parent that would warrant a modification of the 3-10-95 entry and that no modification is in the best interest of the child.
The parent, being the natural custodian of the child, starts with the benefit of the preferential considerations mandated by In re Perales, as a natural right. * * * An agreement to surrender temporary custody is not a knowing and intelligent surrender of the parent's natural right to preferential treatment in a subsequent determination of custody." (Emphasis in original.)
In this case, the trial court should have deferred to the Smiths' "natural right to preferential treatment." See Perales at 89; Carpenter at 185.
Finally, the majority's opinion runs counter to the basic premise that people do not need to be financially responsible to be good parents. If we carry the majority's decision to its logical conclusion, then we must accept that the only way this mother can regain custody of her four-year-old daughter is to fulfill each and every one of the conditions in the agreed entry. The agreement states that Rhonda Smith will complete "her high school and posthigh school education towards a self-sustaining career," and obtain a "self-sustaining occupation" as conditions for having Linda returned to her. The agreement does not specify, however, how much "post-high school education" is enough for Rhonda to regain custody of Linda. It is, potentially, a moving target. Must Rhonda Smith earn an associate's degree? A bachelor's degree? Or will only a graduate degree suffice? Nor does the agreement state what type of employment constitutes a "self-sustaining career" or "occupation." Must she work full-time or part-time?
If the point of the temporary custody arrangement was to permit the Smiths to obtain some financial stability, their achievement of this goal appears to have gotten lost on the majority in favor of holding Rhonda Smith accountable for the discrete, elusive objectives mentioned in the agreed entry. There is good reason to believe that each requirement will indeed have to be met since the majority has just determined that the mother's obtaining her high school GED was, in itself, insufficient to merit the return of her daughter. In addition, this court has now approved the "Magistrate's Financial Responsibility Test" as a benchmark for determining whether Rhonda Smith can adequately care for her daughter.
The opinion of the majority ignores the fact that obtaining a post-secondary degree and pursuing a career do not necessarily result in financial responsibility. There are many high school graduates who, though they are capable of success in college, choose not to go there and are still financially successful. There are many educated, employed parents who might be considered "financially irresponsible." There are also many mothers who are college graduates who choose not to obtain gainful employment because they want to devote their time to rearing their children.
In short, there is no requirement in nature or in law that parents must be fiscally stable before they can be good parents. For the reasons stated above, I must dissent.