      [Cite as In re T.J.B., 2014-Ohio-2028.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: T.J.B.                                   :   APPEAL NO. C-130725
                                                    TRIAL NO. F13-444
                                                :


                                                :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 14, 2014


Katz, Greenberger, & Norton, Scott Kravetz and Christina Yager for Appellant birth
mother,

Voorhees & Levy LLC and Michael R. Voorhees for Appellee Private Adoption
Services, Inc.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Judge.

           {¶1}   Appellant birth mother appeals the judgment of the Hamilton County

Juvenile Court dismissing her petition to revoke her permanent surrender of her minor

son T.J.B. to appellee Private Adoption Services (“PAS”), a private child-placing agency.

Because we conclude that the juvenile court lacked subject-matter jurisdiction to

entertain mother’s petition, we affirm its judgment.

                         Mother’s Permanent Surrender

           {¶2}   Mother gave birth to T.J.B., also known as T.J.R., on June 8, 2012.

On June 11, 2012, she executed a permanent surrender of the child for the sole purpose

of obtaining the adoption of the child. Mother’s execution of the permanent surrender

terminated her parental rights and resulted in PAS receiving permanent custody of

T.J.B. On June 12, 2012, PAS sent notice and copies of mother’s permanent surrender

to the Hamilton County Juvenile Court, which were journalized on June 18, 2012.

           {¶3}   On June 14, 2012, PAS placed T.J.B. with prospective adoptive

parents in California, following approval through the Interstate Compact for the

Placement of Children. In September 2012, the prospective adoptive parents filed a

petition to adopt T.J.B. in a California court. In February 2013, mother filed the current

petition seeking to have the Hamilton County Juvenile Court revoke her consent to the

adoption and void her permanent surrender of T.J.B. to PAS.

           {¶4}   PAS opposed the petition, arguing the juvenile court lacked

subject-matter jurisdiction over mother’s petition. A magistrate determined that

because mother had signed the permanent surrender in Ohio and it had been

processed through the Ohio judicial system to terminate her parental rights, the

juvenile court had jurisdiction over mother’s petition challenging her surrender. PAS

filed a timely objection, which the juvenile court sustained.            It rejected the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



magistrate’s decision and dismissed mother’s petition for lack of subject-matter

jurisdiction.

                               Standard of Review

           {¶5}   In a single assignment of error, mother argues the juvenile court

erred in dismissing her petition for lack of subject-matter jurisdiction.

           {¶6}   Subject-matter jurisdiction denotes the power of a court to hear

and decide a case upon its merits and to render an enforceable judgment in the

action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph

one of the syllabus. The lack of subject-matter jurisdiction is not waivable, and

therefore, may be raised at any time. See Rosen v. Celebrezee, 117 Ohio St.3d 241,

2008-Ohio-853, 883 N.E.2d 420, ¶ 45, quoting Pratts v. Hurley, 102 Ohio St.3d 81,

2004-Ohio-1980, 806 N.E.2d 992, ¶ 11.

           {¶7}   When ruling on a motion to dismiss for lack of subject-matter

jurisdiction, the trial court is not confined to the allegations in the complaint, but

may consider material pertinent to such inquiry without converting the motion into

one for summary judgment. See Wilkerson v. Howell Contrs., Inc., 163 Ohio App.3d

38, 2005-Ohio-4418, 836 N.E.2d 29, ¶ 9 (1st Dist.), citing State ex rel. Bush v.

Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). A trial court’s dismissal for

lack of subject-matter jurisdiction is a question of law that appellate courts review de

novo. See Dikong v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st

Dist.).

                  Juvenile Court Lacked Subject-Matter Jurisdiction

           {¶8}   “The juvenile court possesses only the jurisdiction that the General

Assembly has expressly conferred upon it.” See In re Gibson, 61 Ohio St.3d 168, 172-

173, 573 N.E.2d 1074 (1991), citing Ohio Constitution, Article IV, Section 4(B). The



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subject-matter jurisdiction of the juvenile court is created and defined in R.C.

2151.23. See id; see also Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, 978

N.E.2d 146, ¶ 13. Mother argues that the juvenile court has jurisdiction to entertain

her petition based upon R.C. 2151.23(A)(2), which provides that the juvenile court

has exclusive original jurisdiction “[t]o determine the custody of any child not a ward

of another court of this state.”

           {¶9}    Mother’s argument, however, ignores R.C. 2151.23(A)(9), which

specifically applies to permanent-custody agreements under R.C. 5103.15.            R.C.

2151.23(A)(9) provides that “the juvenile court has exclusive original jurisdiction

under the Revised Code * * * [t]o hear and determine requests for the extension of

temporary custody agreements, and requests for approval of permanent custody

agreements, that are filed pursuant to section 5103.15 of the Revised Code.”

(Emphasis added.)

           {¶10} R.C. 5103.15(B)(1) provides that “the parents * * * of a child, may

with court approval, surrender the child into the permanent custody of a public

children services agency or private child-placing agency to be cared for by the agency

or placed by it in a family home.” R.C. 5103.15(B)(2), provides, however, that

           the parents of a child less than six months of age may enter into an

           agreement with a private child placing agency surrendering the

           child into the permanent custody of the agency without juvenile

           court approval if the agreement is executed solely for the purpose

           of obtaining the adoption of the child. The agency shall, not later

           than two business days after entering into the agreement, notify

           the juvenile court. The court shall journalize the notices it receives

           under division (B)(2) of this section.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



           {¶11} Here, mother elected to surrender her three-day-old son to the

permanent custody of PAS, a private child-placing agency, solely for the purpose of

obtaining the adoption of the child. Thus, under R.C. 5103.15(B)(2), juvenile court

approval was not required to effect the permanent surrender of her son. Given the

language in R.C. 2151.23(A)(9), which only references the jurisdiction of the juvenile

court in conjunction with “requests for approval of permanent custody agreements,

that are filed pursuant to section 5103.15 of the Revised Code,” we cannot say that

the juvenile court erred in concluding that it lacked jurisdiction to entertain mother’s

petition, which sought to “revoke” the permanent surrender of her child.

           {¶12} The Ninth Appellate District has reached the same conclusion in a

factually similar case. In In re E.B., 9th Dist. Summit No. 23850, 2008-Ohio-784,

the birth mother had filed in the Summit County Juvenile Court a motion for relief

from judgment to set aside her permanent surrender. Id. at ¶ 3. An adoption petition

had already been filed and was pending in the probate court when the birth mother

filed her motion in the juvenile court. Id. at ¶ 6. The Summit County Juvenile Court

dismissed the birth mother’s motion for lack of jurisdiction and the Ninth Appellate

District affirmed. Id. at ¶ 7-8.

           {¶13} The Ninth District held that because the birth mother had elected

to surrender her five-month-old child to a private child-placing agency solely for the

purpose of obtaining the adoption of the child, the juvenile court had no obligation

under the plain language of R.C. 5103.15(B)(2) to take any action in regard to the

surrender agreement. Id. at ¶ 19. Thus, the Ninth Appellate District concluded that

R.C. 5103.15(B)(2) when strictly construed did not recognize the right of withdrawal

of consent by a parent of a child less than six months old where permanent surrender

had been made to a private agency solely for the purpose of adoption. Id. at ¶ 20.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Because juvenile court approval was not required, there was no jurisdiction for the

court to exercise. Id. at ¶ 21-22.

           {¶14} Similarly, here the juvenile court’s administrative function of

journalizing the permanent surrender under R.C. 5103.15(B)(2) did not invoke its

jurisdiction to approve or disapprove the grant of permanent custody to PAS. Thus,

any arguments mother may have relating to the validity of her permanent surrender,

which would have consequences for any subsequent adoption proceeding, would not

lie within the juvenile court’s jurisdiction.

           {¶15} Given that mother has challenged on appeal only the subject-

matter jurisdiction of the juvenile court to entertain her petition, and PAS has not

cross-appealed from the juvenile court’s statement that jurisdiction over her petition

lies with the Hamilton County Probate Court, we decline mother’s and PAS’s

invitation to determine whether the probate court would have jurisdiction to

entertain mother’s petition or whether jurisdiction resides with the California court

that is presiding over the adoption proceedings. We, therefore, overrule mother’s

sole assignment of error and affirm the judgment of the juvenile court.
                                                                  Judgment affirmed.

CUNNINGHAM, P.J, and HILDEBRANDT, J., concur.


Please note:
       The court has recorded its own entry this date.




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