In re Allbery
{¶1} Celeste Allbery (hereinafter “Mother“) appeals the judgment of the Hocking County Court of Common Pleas, Juvenile Division, granting the permanent custody of her five minor children to Hocking County Children Services (hereinafter “HCCS“). Mother argues that the trial court‘s judgment is against the manifest weight of the evidence. Because we find that the trial court1
I.
{¶2} In September 2004, HCCS received a referral from Licking County Children Services (hereinafter “LCCS“) that Mother and her minor children were currently residing in Hocking County, in the home of Robyn White. HCCS caseworkers visited White‘s home, wherein they found White, her boyfriend, and the five minor children. White informed the caseworkers that Mother was also in the home, but hiding. Eventually Mother appeared, spoke with a caseworker, and
{¶3} HCCS filed for emergency temporary custody, which the trial court granted. After a shelter care hearing, which Mother attended, four of the children—Faith, Hope, Dalton, and Grace McGiffin (hereinafter “the McGiffin children“)—were placed in the temporary custody of HCCS, and Josiah Allbery was placed in the temporary custody of Robyn White, his paternal step-grandmother, with HCCS providing protective supervision.
{¶4} HCCS filed complaints alleging that the children were dependent pursuant to
{¶5} On February 4, 2005, HCCS filed a case plan, well after the time period prescribed in
{¶6} The trial court held hearings on this matter on February 7-9, 2005; April 19, 2005; and May 6, 2005. On February 9, the trial court ordered the hearing adjourned and continued because one of the attorneys in the matter fell ill and had to be hospitalized.5 None of the parties objected to this continuance, and the hearing continued on April 19, 2005. The record does not reveal why the final hearing date did not occur until May 6, 2005. Mother failed to attend the hearing
{¶7} On June 16, 2005, the trial court permanently terminated Mother‘s parental rights and granted permanent custody of the children to HCCS. The journal entry recites the trial court‘s factual findings from the testimony and evidence presented at the hearing, but fails to identify the statutory basis for its order. On July 14, 2005, the trial court issued another journal entry finding that HCCS engaged in reasonable efforts of reunification and that an order for permanent custody was in the children‘s best interest. However, the trial court again did not identify the statutory basis for its best interest finding.
{¶8} Mother appeals and raises the following assignments of error: “1. The failure of Hocking County Children‘s Services (HCCS) to satisfy the time-period requirements set forth in
II.
{¶10} Ohio law provides for two means by which an authorized agency may seek to obtain permanent custody of a child. The agency may first obtain temporary custody and then subsequently file a motion for permanent custody, or the agency may request permanent custody as part of its original abuse, neglect, or dependency complaint. See
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{¶13} We acknowledge that a court is not required to expressly recite the factual findings relating to each statutory factor in its judgment entry. See In re Myers, Athens App. No. 02CA50, 2003-Ohio-2776, ¶23, citing In re Malone (May 11, 1994), Scioto App. No. 93CA2165; In re Dyal, Hocking App. No. 01CA12, 2001-Ohio-2542, fn. 3, quoting In re Day (Feb. 15, 2001), Franklin App. No. 00AP-1191. However, it is axiomatic that the trial court‘s judgment entry must show that it considered the appropriate factors and engaged in the appropriate analysis. See In re Smith, Ashtabula App. No. 2002-A-0098, 2003-Ohio-800, ¶13 (“There must be some indication in the record that the magistrate or juvenile court considered all five factors found in
{¶14} Here, the trial court did not, in relation to Mother, engage in the best interest of the child analysis or consider the factors codified in
{¶15} The record reveals that the trial court filed an additional judgment entry on July 15, 2005, which expressly found that an award of permanent custody is in the children‘s best interest. Neither party has acknowledged that this entry exists. Nevertheless, because that entry addresses the best interest factor, we will address it.
{¶16} We find that the July 2005 entry does not serve as a nunc pro tunc entry. In Keller v. Keller, Jackson App. No. 03CA3, 2003-Ohio-6462, ¶30, we held that “[t]he purpose of a nunc pro tunc entry is to correct an omission in a prior judgment so as to enter upon the record a judicial action taken but erroneously omitted from the record. It is not made to show what the court might or should have decided, or intended to decide, but what it actually did decide. A nunc pro tunc judgment should be used only to change clerical errors and should not be used to change something which was deliberately done.” (Citations omitted.) Here, the July 2005 entry is not labeled as a nunc pro tunc entry, and its language does not indicate that it intends to serve as a corrective entry. Rather, its language indicates that it intends to serve as a supplemental entry to the June 2005 final appealable order. The entry did not correct a clerical error, but a legal error that the trial court
{¶17} Having found that the July 2005 entry was not a valid nunc pro tunc order, we find its issuance to be analogous to cases in which a party moves for reconsideration after the trial court issues a final appealable order. A motion for reconsideration of a final appealable order is a nullity, and any judgment entered on such a motion is also a nullity. Pitts v. Ohio Dept. of Trans. (1981), 67 Ohio St.2d 378, 379; Kauder v. Kauder (1974), 38 Ohio St.2d 265, 267. Appellate courts are without jurisdiction to review judgments that are nullities. Here, the July 2005 entry is a nullity, and we are without jurisdiction to review it.
{¶18} Even if the July 2005 judgment entry was merely a nunc pro tunc entry, and hence not a nullity, it still did not mention the applicable statutory provisions for a best interest finding. Therefore, we still cannot determine whether the trial court engaged in a proper analysis to support its order.
{¶19} The trial court also did not engage in an analysis of the factors contained in
{¶20} Accordingly, we find that the trial court‘s order was not sufficiently detailed to allow this court to conduct a meaningful review of the order and sustain Mother‘s third assignment of error.
III.
{¶21} In her first assignment of error, Mother argues that the trial court erred when it awarded permanent custody to HCCS despite the fact that HCCS failed to timely file a case plan as required by
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{¶23} Here, the date on which the children were first placed into shelter care and when HCCS filed the complaint coincide—September 30, 2005. Pursuant to
{¶24} We have previously held that the children services agencies do not have a duty to continue reunification efforts after filing the complaint for permanent custody. See In re Ward (Aug. 2, 2000), Scioto App. No. 99CA2677; In re Lewis, Athens App. No. 03CA12, 2003-Ohio-5262. In Ward, we noted that “‘[i]t is axiomatic that a parent‘s statutory right to a reunification plan does not apply in the context of actions seeking permanent custody.‘” Id., quoting In re Cooperman (Jan. 19, 1995), Cuyahoga App. No. 67239, citing In re Pachin (1988), 50 Ohio App.3d 44, 47-48. Thus, a trial court “can award permanent custody to a children services agency even though little or no efforts are made to return the child to his or her home if the evidence supports a finding that it is in the child‘s best interest and that the child should not be returned to the parents.” Id., citing In re Scott (Aug. 22, 1997), Marion App. No. 9-97-N, citing In re Kwanza Lee Stevens (July 16, 1993), Montgomery App. No. 13523. However, if ”
{¶25} Because HCCS sought an award of permanent custody as the initial disposition, it was not required to file a case plan aimed at reunification, unless the basis for the award was predicated upon
IV.
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{¶28}Even if the trial court erred by permitting the hearing to occur beyond the time period set forth in
V.
{¶29} In conclusion, the trial court did not show, in its judgment entry, that it engaged in the requisite statutory analysis. Absent, we cannot provide meaningful review to Appellant‘s argument that the trial court‘s judgment is against the manifest weight of the evidence, or that it erred by not requiring HCCS to timely file a case plan. Finally, we find that the trial court‘s failure to ensure that the hearing occurred within the time period prescribed by
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the judgment be affirmed in part, reversed in part and cause remanded for further proceedings consistent with this opinion. Appellant shall recover of appellee costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issued out of this Court directing the Hocking County Court of Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.
For the Court
BY:__________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to