IN RE C.B.
No. 2010-0180
Supreme Court of Ohio
Submitted February 16, 2011—Decided June 22, 2011.
129 Ohio St.3d 231, 2011-Ohio-2899
{¶ 36} Accordingly, respondent is permanently disbarred from the practice of law in Ohio. Costs are taxed to respondent.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Kevin P. Roberts and Ernest F. McAdams Jr., for relator.
William I. Farrell, pro se.
IN RE C.B.
[Cite as In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899.]
{¶ 1} Once C.B. was adjudicated a dependent child, the Cuyahoga County Department of Children and Family Services (“CCDCFS“) was granted temporary custody. CCDCFS placed C.B. with foster parents. After more than a year, CCDCFS sought to be awarded permanent custody of the child and termination of the rights of the natural parents, thereby allowing the agency to place the child for adoption.
{¶ 2} The juvenile court denied CCDCFS‘s motiоn and terminated CCDCFS‘s temporary custody of the child. The court also ordered that the child be placed with the father. Accordingly, it granted the father legal custody of the child but continued CCDCFS‘s protective supervision of the child so that progressive in-home and overnight visitation with the father could be implemented. According to the court‘s order, the temporary-custody order was to terminate within the week.
{¶ 3} Two days later, CCDCFS filed a motion to modify the dispositional order. CCDCFS requested a two-month extension of temporary custody to complete the progressive visitation schedule. In the motion, CCDCFS asserted that the goal of gradual, increased visitation could not be achieved without the additional time. The court stayed the order that terminated CCDCFS‘s temporary custody, pending a hеaring on CCDCFS‘s motion. The child‘s mother then appealed the order granting custody to the father, and the child‘s guardian ad litem filed a cross-appeal on behalf of the child, challenging the trial court‘s denial of CCDCFS‘s motion for permanent custody and the award of legal custody to the father.
{¶ 4} The Court of Appeals of Cuyahoga County dismissed the appeal on the authority of In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886. The child‘s guardian ad litem sought discretionary review by this court, asking whether an award of legal custody by a trial court in a neglect or dependency
{¶ 5} For an order to be final and appealable, it must meet the requirements of
{¶ 6} “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶ 7} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶ 8} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.”
{¶ 9} In In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, a trial court denied a children-services agency‘s motion to modify an order granting it temporary custody to an order of permanent custody. The appellate court dismissed the agency‘s appeal of the denial for lack of a final, appealable order. This сourt affirmed and held, “A trial court order denying the motion of a children-services agency to modify temporary custody to permanent custody and continuing temporary custody is not a final, appealable order under
{¶ 10} The rationale for our conclusion in Adams was that the order denying permanent custody of the child to the children-services agency did not determine the action or prevent a judgment under
{¶ 11} We also concluded in Adams that a children-services agency does not have a substantial right in the permanent custody of a child based on the fact that the agency has temporary custody of the child. Id. at ¶ 42. See
{¶ 12} The underlying principles decided in Adams, Murray, and H.F. guide our analysis in this case. We have previously held that custody hearings are sрecial proceedings.
{¶ 13}
{¶ 15} Therefore, we hold that when a trial court denies a children-services agency‘s motion to modify temporary custody to permanent custody, terminates the placement of temporary custody with the agency, and awards legal custody to a parent, the order is final and appealable under
{¶ 16} Appellants presented a third proposition of law that purports to raise a question whether a child who is a party in a permanent-custody case is entitled to legal counsel separate from that of the guardian ad litem who is also an attorney. In In re Williams, we held that “a child whо is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances.” 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, syllabus. Appellants assert that the juvenile court abused its discretion in failing to appoint separate legal counsel to protect the child‘s wishes because of the conflict between the child‘s wishes and the father‘s interests. We are unable to agree with that assertion.
{¶ 18} In our independent review of the record before us, we are also unable to find any motion made to the trial court requesting that independent counsel be appointed for the child, and the trial court never had occasion to rule on this issue. Consequently, in addition to the record‘s not supporting the claim that the child required independent counsel in this case, the issue is not properly before this court, and we decline to consider this matter in the first instance. This proposition of law is therefore dismissed as having been improvidently accepted.
{¶ 19} Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the appellate сourt for further proceedings consistent with our decision, in accordance with the expedited appeals provision of App.R. 11.2.
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE BROWN, JJ., concur.
O‘DONNELL, J., concurs in judgment only.
PFEIFER J., dissents.
{¶ 20} I concur in the judgment but write separately to express concern about how the legal system has handled C.B.‘s case. In 1997, Congress passed the Adoption and Safe Families Act (“ASFA“),
{¶ 21} A parent‘s right to his or her children generally trumps the rights of all others, but not when there is clear and convincing evidence of abuse or neglect. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶ 40-42. In the event that a court removes a child from a parent because of abuse or neglect, the parent faces court orders to remedy the conditions causing the child‘s removal. If a parent fails within 12 months to remedy these problems or to make substantial progress toward their remediation, the child is entitled to a permanency determination.
{¶ 22} In this case, the legal system has done harm to this child. No child should spend five years in foster care. It is unconscionable.
{¶ 23} We are required to remand this case for determinations consistent with our decision. In so doing, I urge the courts to comply with the rules requiring the speedy resolution of abuse and neglect cases and to expeditiously move C.B.‘s case to finality. App.R. 11.2(C) and (D).
{¶ 24} When children must be removed from their parents, juvenile courts are required to resolve their cases within statutory time frames. We do no work that is more important than рrotecting children and giving them a right to a childhood free from abuse and neglect with a permanent family. In the best of circumstances, the birth family will be the permanent family, but when it cannot be, we owe it to these children to give them their best opportunity to be adopted into a loving, safe family. Unfortunately, the ability to be adopted diminishes as a child ages in the foster-care system. For this reason, Congress and Ohio enacted the provisions of the ASFA, and our courts must resolve these cases as quickly as possible.
O‘CONNOR, C.J., and LUNDBERG STRATTON, J., concur in the foregoing opinion.
{¶ 25} I dissent. I would affirm the holding of the court of appeals that there is no final, appealable order in this case. I base this conclusion on the state of the record. The order committing the child to the temporary custody of the Cuyahoga County Department of Children and Family Services (“CCDCFS“) was never terminated. The court of appeals’ entry denying a motion to reconsider its denial of an en banc consideration of the case tells the story:
{¶ 26} “Once again, the denial of a state‘s motion for permanent custody is not a final appealable order. Child is in protective custody of the county. Issues remain рending in the trial court.”
{¶ 27} In an entry signed February 1, 2009, the juvenile court judge originally terminated CCDCFS‘s temporary custody, effective February 5, 2009; then, in response to a CCDCFS motion, in an order signed on February 3, 2009, the judge stayed the termination of temporary custody pending a February 27, 2009 hearing. Before that hearing was held, C.B.‘s mother appealed to the court of appeals. I would hold that there was no final ordеr in place for the mother to have appealed from.
{¶ 28} The case unfolded like this. In the judgment entry signed February 1, 2009, the juvenile court judge decreed:
{¶ 29} “The order heretofore made committing the child to the temporary custody of the Cuyahoga County Department of Children and Family Services is terminated effective February 5, 2009. The child is committed to the protective supervision of CCDCFS with the lеgal custody of the father, Anthony Wylie * * *.
{¶ 30} “Amended case plan to be filed with the following modifications: reinstatement of unsupervised visitation; progressive implementation for in-home visitation, bi-weekly extended visitation, and overnight weekend visitation; referral for family preservation to assist child and parent with transition needs and services including appropriate day care, medical care, etc.
{¶ 31} “This matter is continued to February 27, 2009 at 9:30 a.m. for a custody review hearing pursuant to
{¶ 32} “Parties are advised that they have thirty (30) days from the date of this entry to file an appeal with the Court of Appeals.”
{¶ 33} Despite the fact that the entry bears the date of February 1, 2009, under the judge‘s signature, a statement below that date reads, “Filed with the
{¶ 34} On February 3, 2009, CCDCFS filed a motion for modification of the dispositional order and requested an immediate hearing. The agency asked that its temporary custody be extended to April 16, 2009.
{¶ 35} In response, the judge released another order:
{¶ 36} “This matter came on for consideration this 3rd day of February, 2009 before the Honorable Judge Alison L. Floyd upon the [sic] with prayer for as [sic] to the Child heretofore judged to be dependent.
{¶ 37} “Whereupon the Court finds that CCDCFS through counsel has entered a written notice for modification of dispositional order. The Court, upon its own motion, shall stay its order terminating the agency temporary custody of the child pending hearing on February 27, 2009.
{¶ 38} “It is therefore ordered that the Court‘s prior order terminating the temporary custody of CCDCFS effective February 5, 2009 is stayed from execution pending review hearing on February 27, 2009 at 9:30 a.m. and for preliminary hearing upon the agency‘s motion for modification of the dispositional order of February 1, 2009.”
{¶ 39} This order was dated February 3, 2009, beneath the judge‘s signature line. Again, a separate statement below thаt date states that the order was filed on February 5, 2009: “Filed with the clerk and journalized by Cuyahoga County Juvenile Court Clerks [sic] Office, Volume 10, Page 2138, February 5, 2009, cjds3.”
{¶ 40} C.B.‘s mother filed a notice of appeal on February 5, 2009. Nothing in the record indicates that the February 27, 2009 hearing that may have modified the court‘s decision ever occurred. There was no final order to form the basis of an appeal. This case was not over at the juvenile court level. Although the juvenile court‘s handling of this case until this point inspires little confidence, the correct disposition here is to affirm the judgment of the court of appeals and remand the case to the juvenile court for a resolution.
R. Brian Moriarty, for appellant C.B.
Jonathan N. Garver, for appellant Thomas Kozel, guardian ad litem, for C.B.
Anthony M. Wylie, pro se.
Judith L. Layne, urging reversal for amicus curiae Guardian Ad Litem Project.