In re A.S.
2013 Ohio 1975
Ohio Ct. App.2013Background
- CSB filed a complaint on Oct 9, 2009 alleging A.S. was dependent and neglected after parents argued; child removed by police.
- A.S. was placed with a foster family, then with maternal great aunt and great uncle (Relatives) within six months.
- Magistrate granted legal custody to Relatives on May 19, 2011; Father objected and cross-exam of the guardian ad litem was ordered.
- Relatives stated they no longer wished to have legal custody after a contempt hearing in Jan 2012; a status hearing was set for Feb 13, 2012.
- Trial judge granted a delay on Feb 6, 2012, allowed additional time for Relatives’ position to be addressed, and ultimately granted legal custody to Relatives on May 2, 2012; Father appeals.
- The appeals court ultimately sustained Father’s third assignment of error, reversed, and remanded for a full dispositional hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in granting legal custody to Relatives and denying Father’s custody. | Father argues Relatives’ willingness to custody was unstable and not in A.S.’s best interests. | CSB contends the question was moot due to Relatives’ later position; the court should rely on the prior record. | Sustained; remanded for full dispositional hearing. |
| Whether the court properly awarded Father standard visitation. | Father contends the standard visitation order was inappropriate. | CSB asserts the issue was moot given custodial disposition. | Moot; not decided on appeal. |
| Whether the court erred by denying Father’s motion to change disposition without a hearing. | Father contends a hearing was required to address Relatives’ renunciation of custody. | CSB argues the motion was moot or superseded by subsequent events. | Sustained; remanded for a hearing on disposition. |
Key Cases Cited
- In re McBride, 110 Ohio St.3d 19 (2006-Ohio-3454) (modification of dispositional orders guided by best interests; statutory mechanism exists to modify/terminate orders)
- Welch v. Welch, 2012-Ohio-6297 (4th Dist.) (new evidence between magistrate decision and judgment may be admitted to serve the child’s best interests and judicial economy)
- Noe v. Noe, 2008-Ohio-1700 (5th Dist.) (allowing consideration of new evidence when not previously available to protect child’s interests)
- In re Haller, 2008-Ohio-4304 (3d Dist.) (due process and notice in modification/disposition proceedings; safeguards for children)
- Flynn v. Flynn, 2004-Ohio-3881 (10th Dist.) (trial court control of its docket; authority to hear/receive additional evidence under Juv.R. 40(D) for child’s best interests)