In Re C.W.
Lead Opinion
DECISION AND JOURNAL ENTRY
{¶ 1} Appellants, Mark Worrell and Elizabeth Weinsheimer, appeal from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights to their minor child, C.W., and placed him in the permanent custody of Summit County Children Services Board, (“CSB“). We reverse.
{¶ 2} Worrell and Weinsheimer are the natural parents of C.W., born on September 24, 1999. The child was initially removed from his home on June 19, 2002, and was adjudicated dependent on July 19, 2002. On April 23, 2003, CSB moved for permanent custody of C.W., alleging that the child had been in the temporary custody of CSB for 12 months prior to the filing of the motion; that the mother had her parental rights terminated with respect to a sibling;1 that C.W. cannot be placed with his parents within a reasonable time; as well as that permanent custody was in the best interest of the child.
{¶ 3} Following hearing, the trial judge granted CSB‘s motion for permanent custody and terminated the parental rights of the parents. In its judgment entry, the trial court determined: (1) that the child had been in the temporary custody of CSB since June of 2002, that being 12 or more months out of a consecutive 22-month period, pursuant to
Worrell‘s First Assignment of Error
“The trial court erred in granting csb permanent custody where csb failed to use reasonable efforts to reunite appellant-father and the minor child.”
Worrell‘s Second Assignment of Error
“The trial court‘s order terminating appellant-father‘s parental rights was against the manifest weight of the evidence, contrary to law, and/or an abuse of discretion.”
Worrell‘s Third Assignment of Error
“The trial court‘s decision denying appellant-father‘s motion for a six month extension of temporary custody and/or appellant-father‘s motion for legal custody was against the manifest weight of the evidence, contrary to law, and/or abuse of discretion.”
Weinsheimer‘s Assignment of Error
“The trial court‘s decision to terminate appellant‘s parental rights and grant permanent custody to summit county children‘s services was not supported by clear and convincing evidence and was against the manifest weight of the evidence.”
{¶ 4} Because we find that the judgment of the trial court is indisputably based upon an erroneous conclusion, i.e., that the child had been in the temporary custody of CSB for more than 12 months, pursuant to
{¶ 5} Before a juvenile court can terminate parental rights and award permanent custody to a proper moving agency, it must find clear and convincing evidence of both portions of the permanent custody test as set forth in
{¶ 6} In the present case, as to the first prong, the trial court found that the child had been in the temporary custody of CSB for more than 12 months of the prior 22-month period, citing
{¶ 7} Within the statement of facts of his appellate brief, Worrell points out that the child had, in fact, been in the temporary custody of CSB for less than 12 months when the motion for permanent custody was filed. Weinsheimer argued during the trial below that the motion for permanent custody was premature.2 Neither parent has specifically assigned or argued this point as error on appeal. Both parents, however, have claimed on appeal that the judgment of the trial court is not supported by the weight of the evidence.
{¶ 8} For its part, CSB initially moved for permanent custody based on a claim that the child had been in temporary custody for 12 months at the time the motion was filed. However, CSB has subsequently argued on appeal that the child had been in the temporary custody of CSB for more than 12 months at the time of the permanent custody hearing.3
{¶ 9} In reviewing the judgment of a lower court, a court of appeals is guided by
“The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under
{¶ 10} Thus, errors not specifically pointed out in the record and separately argued by brief may be disregarded.
{¶ 11} The Ohio Supreme Court explained in a subsequent case that, when reaching a question not assigned by the parties, there “must be sufficient basis in the record before it upon which the court can decide that error.” (Emphasis sic.) Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 342. In State v. Peagler (1996), 76 Ohio St.3d 496, 499, the court reiterated the point. “Although [
{¶ 12} The issue before this court requires a determination of whether the “child has been in the temporary custody of [CSB] for twelve or more months of a consecutive twenty-two month period * * *.”
{¶ 13} The Peagler court also addressed the concept of fairness, and in that regard, indicated that the parties should have had “the opportunity to present evidence that would support or refute the legal theory addressed by the court of appeals.” Peagler, 76 Ohio St.3d at 499. Similarly, the trial court should have “had an opportunity to address the issue.” Id. at 501. In the present case, CSB raised the issue through its complaint and the trial court relied upon that ground in support of its judgment. The issue was placed squarely before the trial court by CSB and was critical to the final judgment of the trial court.
{¶ 14} The Ohio Supreme Court has also indicated that where a legal issue is not argued, but is nevertheless implicit in another issue that has been presented by an appeal, it may reach that unargued issue. See Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos. Inc. (1993), 67 Ohio St.3d 274, 279.
“When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue. To put it another way, if we must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, we will do so.” Id.
{¶ 15} The question of whether C.W. was in the temporary custody of CSB for 12 or more months within the meaning of
{¶ 16} Therefore, we proceed to consider whether C.W. was in the temporary custody of CSB for 12 or more months, pursuant to
{¶ 17} This Court has recently considered the question of whether the first prong of the permanent custody test may be satisfied by
{¶ 18} In our review of the record, we find that the undisputed facts fail to support a finding that the child was in the temporary custody of CSB for more than 12 months prior to the filing of the motion for permanent custody, and, in fact, establish that such conclusion is erroneous. The record indicates that C.W. was removed from his home on June 19, 2002. The child was adjudicated dependent on July 19, 2002. Accordingly, for purposes of
{¶ 19} Because the child had not been in the temporary custody of CSB for 12 months at the time the motion for permanent custody was filed in the present case, any reliance on such fact in support of the first prong of the permanent custody test is erroneous. The trial court erred in relying on this ground in granting permanent custody to CSB.
{¶ 20} While CSB also alleged alternate grounds in its motion for permanent custody upon which the trial court might have relied in regard to the first prong of the permanent custody test, the trial court declined to enter any determinations on those grounds. Instead, its finding in regard to the first prong of the test is based solely upon an erroneous conclusion. This error, clearly demonstrated to us by the face of the record, strikes at the fundamental fairness of the trial below. Failure to address it in this appeal would have a substantial adverse impact on the fairness and integrity of the proceedings.
{¶ 21} The fundamental right of parents to the care, custody, and control of their children is well established. Troxel v. Granville (2000), 530 U.S. 57, 66, 147 L.Ed.2d 49. Actions calling for the permanent termination of parental rights must afford to parents “every procedural and substantive protection the law allows.” In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at ¶ 14. Because permanent custody may not be granted to CSB absent clear and convincing evidence upon both prongs of the permanent custody test,
{¶ 22} We find that the juvenile court erred in terminating the parental rights of Worrell and Weinsheimer, and placing their child, C.W., in the permanent custody of CSB. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and the cause is remanded with instructions to render judgment accordingly.
Judgment reversed and cause remanded.
Slaby, J., concurs.
Whitmore, P.J., concurs.
Concurrence Opinion
{¶ 23} I concur in the judgment of the majority, but write only to clarify that I continue to adhere to my position in In re M.B., 9th Dist. No. 21760, 2004-Ohio-597, (Whitmore, J., dissenting). In that case, I concluded that the trial court is not obligated to incorporate its determinations on each prong of the permanent custody test into its judgment entry, where the appellant has failed to move for findings of fact and conclusions of law. Id. at ¶ 16.
{¶ 24} I find the present case distinguishable from In re M.B. In the case at bar, the trial court did not simply fail to incorporate a determination on one prong of the permanent custody test in its judgment entry. Instead, it made a finding on the “12 of 22” prong that conflicts with our holding in In re K.G., S.G., T.G., 9th Dist. Nos. 03CA0066, 03CA0067, and 03CA0068, 2004-Ohio-1421. I note that In re K.G. was decided subsequent to the judgment entry of the trial court in the case at bar. Here, the trial court clearly intended to base its decision on the “12 of 22” prong, and not on any of the other three alternatives set forth in
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appell