In re James

{¶ 1} Cynthia and Rick Hutchinson, the maternal grandparents of Brayden James, appeal from a decision of the First District Court of Appeals, which affirmed an order of the juvenile court modifying a prior custody decree removing them as legal custodians of Brayden and awarding custody of him to his biological parents — their daughter, Jamie, and her husband, Damon James.

{¶ 2} The appellate court found R.C. 3109.04(E)(1)(a) unconstitutional as applied to Jamie and Damon James, declaring that it deprived them of their fundamental right to parent their child, Brayden. After careful review of this case, we have concluded that R.C. 3109.04(E)(1)(a) provides stability with respect to judicial decisions involving custody of children, does not deprive parents of fundamental rights, and is constitutional as applied in this case. Therefore, we reverse the decision of the appellate court and remand this matter for further consideration.

{¶ 3} The record reveals that in October 1999, Jamie took six-month-old Brayden to the Cincinnati Children’s Hospital for treatment of bruises he had on his forehead and back, but she did not explain at that time how he received these injuries. On November 19, 1999, the mother again took Brayden to the hospital, this time for injuries that included broken ribs and bruises on his face and leg. Although she again failed to explain how these injuries occurred, the mother did report that she and Brayden were staying with her parents, Cynthia and Rick Hutchinson, because her husband, Damon, had committed acts of domestic violence.

{¶ 4} The Hamilton County Department of Human Services (“department”) subsequently filed both a complaint in the juvenile court alleging that Brayden was abused, neglected, and dependent, and a motion seeking temporary custody of the child pending a hearing on the complaint. Following a hearing on the temporary-custody motion, the court awarded custody to the department, appointed Cynthia Hutchinson as the child’s physical custodian, and scheduled the complaint for further hearing. The department initiated a case plan for Jamie and Damon and referred them to a variety of services including counseling, parenting classes, and anger-management classes.

{¶ 5} On June 29, 2000, the court conducted a hearing on the abuse, neglect, and dependency complaint filed by the department, with Brayden’s parents and maternal grandparents present. The parties stipulated to the allegations in the complaint and further agreed that the award of temporary custody to the department, with Brayden’s continued placement at his grandparents’ home, would be in his best interest. Consequently, the court found that Brayden was abused and dependent and committed him to the temporary custody of the department with continued placement with his grandparents. Following that hearing, the department further developed its case plan for Jamie and Damon, and they participated in therapy, counseling, and parenting classes.

{¶ 6} On May 31, 2001, at the annual review of the case plan, the department asked the juvenile court to award legal custody of Brayden to his grandparents, Cynthia and Rick Hutchinson. Jamie and Damon stipulated to that request, and the court found that awarding legal custody to the grandparents would be in the best interest of the child and entered an order to that effect. It also established a supervised-visitation schedule allowing Jamie and Damon to visit with Brayden.

{¶ 7} Almost three years later, on February 6, 2004, Jamie and Damon filed a motion to obtain custody of Brayden. The juvenile court held a hearing, during which Brayden’s parents and maternal grandparents testified, as well as experts and a court-appointed investigator who had observed Brayden interacting with both his parents and grandparents. Thereafter, the court journalized an order restoring Brayden to the custody of his parents. The grandparents appealed that decision.

{¶ 8} The First District Court of Appeals affirmed the judgment of the juvenile court transferring custody of Brayden from his grandparents to his parents and held that “when a nonparent has nonpermanent custody of a child, the requirement in R.C. 3109.04(E)(1)(a) that the child’s parent must demonstrate a change in circumstances for either the child or the nonparent in order for the court to modify custody is unconstitutional.” In re James, 163 Ohio App.3d 442, 2005-Ohio-4847, 839 N.E.2d 39, ¶ 19. The court recognized the parents’ fundamental right to raise their child and ruled that “when a parent petitions for custody of his or her child from a nonparent, a court must consider only what is in the best interest of the child.” Id.

{¶ 9} We accepted a discretionary appeal to review the constitutionality of R.C. 3109.04(E)(1)(a) as applied in this case and, specifically, to consider whether a trial court, when modifying a prior decree allocating parental rights and responsibilities for the care of children, should consider only whether the modification is necessary to serve the best interest of the child, or whether the trial court has an obligation to adhere to the conjunctive statutory requirements to find both a change in the circumstances of the child, the residential parent, or either of the parents subject to a shared-parenting decree, and that the modification is necessary to serve the best interest of the child.

{¶ 10} Cynthia and Rick Hutchinson claim that the statutory “change in circumstances” requirement conforms with the Ohio Constitution because the juvenile court had adjudicated Brayden to be abused and dependent and also because Damon and Jamie stipulated to the court order that granted them legal custody of Brayden. They also claim that the appellate court misread In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, when it concluded that R.C. 3109.04(E)(1)(e) violates fundamental parental rights.

{¶ 11} Relying on In re Hockstok, Jamie and Damon claim they should be able to regain custody of their child by demonstrating only that it would be in the best interest of the child and that the “change in circumstances” requirement of R.C. 3109.04(E)(1)(a) imposes an unconstitutional burden on them, denying them their fundamental parental rights.

{¶ 12} We begin our review of the law in this case by examining R.C. 3109.04(E)(1)(a), which provides, “The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children 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, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.”

{¶ 13} We have previously stated, in State v. Collier (1991), 62 Ohio St.3d 267, 581 N.E.2d 552, that “all legislative enactments must be afforded a strong presumption of constitutionality.” Id., citing State v. Anderson (1991), 57 Ohio St.3d 168, 566 N.E.2d 1224, State v. Klinck (1989), 44 Ohio St.3d 108, 541 N.E.2d 590, and State v. Tanner (1984), 15 Ohio St.3d 1, 15 OBR 1, 472 N.E.2d 689. Further, in reviewing a statute, we are obligated “to give effect to the words used and not to insert words not used.” State ex rel. Richard v. Bd. of Trustees of the Police & Firemen’s Disability & Pension Fund (1994), 69 Ohio St.3d 409, 412, 632 N.E.2d 1292, citing State v. S.R. (1992), 63 Ohio St.3d 590, 595, 589 N.E.2d 1319.

{¶ 14} The plain language of R.C. 3109.04(E)(1)(a) precludes a trial court from modifying a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the time of the decree or were unknown to it at that time, not only that a change has occurred in circumstances of the child, the child’s residential parent, or either parent subject to a shared-parenting decree, but also that the modification of the prior custody decree is necessary to serve the best interest of the child.

{¶ 15} In Davis v. Flickinger (1997), 77 Ohio St.3d 415, 674 N.E.2d 1159, we reviewed R.C. 3109.04(E)(1)(a) and determined that it is designed to provide stability in the life of a child. There, we stated, “ ‘The clear intent of that statute is to spare children from a constant tug of war * * *. The statute is an attempt to provide some stability to the custodial status of the children, even though the parent out of custody may be able to prove that he or she can provide a better environment.’ ” Id. at 418, 674 N.E.2d 1159, quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416, 3 OBR 479, 445 N.E.2d 1153.

{¶ 16} We also acknowledge that the Constitutions of both the United States and the state of Ohio afford parents a fundamental right to custody of their children. In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16, citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599; and In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169.

{¶ 17} Upon review, however, R.C. 3109.04(E)(1)(a) does not violate the fundamental rights of parents either on its face or as applied in this case. Here, the juvenile court adjudicated Brayden as abused and dependent, and Jamie and Damon voluntarily relinquished custody of him to his grandparents. In addition, Cynthia and Rick Hutchinson have raised Brayden in a stable home environment, and we are not unmindful that Jamie and Damon enjoy residual parental rights, privileges, and responsibilities as set forth in R.C. 2151.011(B)(19) and (46).

{¶ 18} In this case, the record does not establish a change in Brayden’s circumstances, but that failure does not prevent Jamie and Damon from ever regaining custody of him. At a future time, by evidencing a sufficient change in the child’s circumstances to the court, his parents may be able to regain his custody. Ohio courts have considered a variety of factors that are relevant to the change-in-circumstances requirement of R.C. 3109.04(E)(1)(a). For example, relevant factors presented in other cases have included “a new marriage that creates hostility by the residential parent and spouse toward the nonresidential parent, frustrating attempts at visitation,” Davis, 77 Ohio St.3d at 419, 674 N.E.2d 1159; the advancement of a child from infancy to adolescence, Perz v. Perz (1993), 85 Ohio App.3d 374, 377, 619 N.E.2d 1094; unruly behavior of the residential parent involving the police, Butler v. Butler (1995), 107 Ohio App.3d 633, 669 N.E.2d 291; and fights between the residential parent and a new spouse that required police intervention, along with the fact that the residential parent had moved six times in two years, Dedic v. Dedic (Jan. 27, 1999), Wayne App. No. 98CA0008,1999 WL 33445.

{¶ 19} Thus, R.C. 3109.04(E)(1)(a) imposes restrictions on the exercise of judicial authority and requires that, before a trial court modifies an existing order of custody, it is not only required to find, based on facts that have arisen since the prior decree or that were unknown to it at that time, that a change has occurred in the circumstances of the child, the child’s residential parent, or either parent subject to a shared-parenting decree, but also that the modification is necessary to serve the best interest of the child.

{¶ 20} Further, the provisions of R.C. 3109.04(E)(1)(a) promote stability in the development of children and are not unconstitutional as applied when a noncustodial parent has not evidenced that a change has occurred in circumstances.

{¶ 21} We distinguish In re Hockstok from this case. There, the issue concerned whether, in a child-custody case, a trial court must make a parental-unsuitability determination on the record before awarding legal custody of a child to a nonparent. We held that “in custody cases between a natural parent and nonparent, a parental unsuitability determination must be made and appear in the record before custody can be awarded to a nonparent.” 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, at ¶ 36. We also recognized that a determination of unsuitability depends on whether the record supports a finding that the natural parent has relinquished his or her custodial rights. Id. at ¶ 33, citing In re Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, and Masitto v. Masitto (1986), 22 Ohio St.3d 63, 22 OBR 81, 488 N.E.2d 857.

{¶ 22} Similarly, we distinguish In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, a case that concerned only “[w]hether, before awarding legal custody to a nonparent, a trial court must first find the noncustodial parent unsuitable when a child has been determined to be abused, neglected or dependent.” Id. at ¶ 1. In that case, we noted that a grant of legal custody does not terminate residual parental rights, and we held that a juvenile court adjudication of abuse, dependency, or neglect “is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child’s custodial and/or noncustodial parents.” Id. at ¶ 23.

{¶ 23} By way of contrast, in the instant case, no similar issue regarding unsuitability arises in connection with the order of the juvenile court awarding legal custody of Brayden to his grandparents because he previously had been adjudicated abused and dependent and because Jamie and Damon had voluntarily relinquished custody of him. See In re Perales and Masitto, supra.

{¶ 24} We acknowledge the view of the dissenting members of the court, who assert that R.C. 3109.04(E)(1)(a) has no application here. We have used R.C. 3109.04(E)(1)(a) because the constitutional challenge before us arose from that statute and from the appellate court’s analysis and conclusion.

{¶ 25} Both dissenting opinions recognize that the matter arose from a decision of the juvenile court, but neither has acknowledged R.C. 2151.23(F)(1), which states, “The juvenile court shall exercise its jurisdiction in child custody matters in accordance with sections 3109.04, 3127.01 to 3127.53, and 5103.20 to 5103.22 of the Revised Code.”

{¶ 26} Finally, with respect to the views of the dissenters, we note that R.C. 2151.42, styled “Consideration of whether return to parents is in best interest of child; certain orders granting legal custody intended to be permanent,” also addresses juvenile custody cases. That statute is more compelling on the issue of permanency than is R.C. 3109.04(E)(1), and it places similar requirements upon a court considering whether to modify a prior order of legal custody. R.C. 2151.42(B) states, “An order of disposition issued under division (A)(3) of section 2151.353, division (A)(3) of section 2151.415, or section 2151.417 of the Revised Code granting legal custody of a child to a person is intended to be permanent in nature. A court shall not modify or terminate an order granting legal custody of a child unless it finds, based on facts that have arisen since the order was issued or that were unknown to the court at that time, that a change has occurred in the circumstances of the child or the person who was granted legal custody, and that modification or termination of the order is necessary to serve the best interest of the child.” (Emphasis added.) The italicized portion of this statute does not appear in R.C. 3109.04(E)(1), but the analysis under either statute would be similar.

{¶ 27} In addition, neither dissenting opinion recognizes that the juvenile court declared this child to be abused and dependent, which this court has stated is a determination of the unsuitability of the parents. See In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 22.

{¶ 28} The General Assembly is the policy-making body in our state and has restricted the exercise of judicial authority with respect to modification of a prior decree allocating parental rights and responsibilities. This legislation comports with our rationale regarding stability in the lives of children as a desirable component of their emotional and physical development. For example, we stated in In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055, that children should not be deprived “of the stability and security which they need to become productive and well-adjusted members of the adult community.”

{¶ 29} If the General Assembly chooses to provide different requirements for the exercise of judicial authority with respect to the modification of prior custody orders, it may do so. Until it does, however, a trial court is required to follow the mandate of R.C. 3109.04(E)(1)(a) and may not modify a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the prior decree or that were unknown to it at the time of the prior decree, that a change has occurred in the circumstances of the child, his residential parent, or either of the parents subject to a shared-parenting decree, and that the modification is necessary to serve the best interest of the child.

{¶ 30} Accordingly, we are constrained to reverse the judgment of the court of appeals and remand the matter for further consideration in accordance with this opinion.

Judgment reversed and cause remanded.

Moyer, C.J., O’Connor and Lanzinger, JJ., concur.

Wolff, Pfeifer and Lundberg Stratton, JJ., dissent.

William H. Wolff, J., of the Second Appellate District, was assigned to sit for Resnick, J., whose term ended on January 1, 2007.

Cupp, J., whose term began on January 2, 2007, did not participate in the consideration or decision of this case.