IN RE: J.B.
C.A. Nos. 28752, 28753
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 24, 2018
[Cite as In re J.B., 2018-Ohio-244.]
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN15-11-774
CALLAHAN, Judge.
{¶1} Appellants, Mother and Father, appeal the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights and awarded permanent custody of their child, J.B., to appellee Summit County Children Services Board (“CSB“). This Court reverses and remands.
I.
{¶2} Mother and Father are the unmarried biological parents of J.B. (d.o.b. 10/10/15). Father was incarcerated and serving a nine-year prison sentence when the child was born at 32 weeks gestation. Due to the child‘s prematurity, Mother‘s cognitive delays which hindered her ability to care for the baby without prompting and intervention, and Mother‘s lack of family support in the area, CSB filed a complaint on the day J.B. was scheduled to be released from the hospital, alleging that
{¶3} Over the course of the next several months, Mother was compliant with her case plan objectives. However, she remained unable to implement the information she received during intensive parenting classes to demonstrate an ability to safely and adequately care for the child. Approximately ten-and-a-half months after filing its complaint, CSB filed a motion for permanent custody. In support of the first-prong finding necessary for an award of permanent custody, the agency alleged that (1) the child could not be placed with either parent within a reasonable time or should not be placed with his parents pursuant to
{¶4} Three days after the permanent custody hearing was to have taken place, the juvenile court, without explanation, issued an order rescheduling the permanent custody hearing for a date two-and-a-half months later. One month after the latest scheduling order, the juvenile court held a file review and issued an order continuing the permanent custody hearing for another two-and-a-half months on the court‘s own motion. The next day, CSB filed another motion for permanent custody, notwithstanding the fact that its original motion remained pending. The agency neither withdrew its original motion, nor requested leave to file a second motion. Nor did the agency caption its second motion as an amended or renewed motion.1 Moreover, there is no record of the trial court having ruled on the first motion.
{¶5} In its second motion for permanent custody, CSB attempted to combine the first-prong provisions of
The child is not abandoned as to his mother, he is not orphaned, and he has been in the temporary custody of one or more public children service agencies or private child placing agencies for twelve (12) or more months out of a consecutive twenty-two (22) month period or previously in the temporary custody of an equivalent agency in another state, but cannot be placed with either parent within a reasonable time or should not be placed with his/her parents.
The only time CSB expressly alleged that Father had abandoned the child was
{¶6} One week before the permanent custody hearing was ultimately held, Father filed a motion for legal custody to a third party, specifically a “close family friend” who lived in California. At the permanent custody hearing, the juvenile court considered CSB‘s second motion for permanent custody, Mother‘s motion for legal custody, and the parents’ joint oral motions for a six-month extension of temporary custody. At the conclusion of the hearing, the visiting judge issued a judgment entry granting CSB‘s motion for permanent custody and terminating Mother‘s and Father‘s parental rights to J.B.2 Mother and Father filed separate timely appeals, each raising two nearly identical issues for review. This Court consolidates the parents’ assignments of error to facilitate discussion.
II.
MOTHER‘S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT J.B. HAD BEEN IN THE TEMPORARY CUSTODY OF CSB FOR TWELVE OR MORE MONTHS OF A CONSECUTIVE TWENTY-TWO-MONTH PERIOD.
FATHER‘S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT J.B. HAD BEEN IN THE TEMPORARY CUSTODY OF SCCS FOR TWELVE OR MORE MONTHS OF A CONSECUTIVE TWENTY-TWO-MONTH PERIOD.
{¶7} Mother argues that the juvenile court erred by relying on its finding that J.B. had been in the temporary custody of CSB for 12 or more months of a consecutive 22-month period to support its award of permanent custody. Specifically, Mother argues that the agency‘s first motion for permanent custody, which properly did not allege that J.B. had been in the temporary custody of CSB for 12 of 22 months, was the only viable motion for permanent custody for the juvenile court‘s consideration. She argues, in other words, that the agency‘s second motion could no more than supplement the first motion, relating back to the date that the first motion was filed. Father adopts Mother‘s argument. This Court finds the argument to be well taken.
{¶8} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period; that the child is neither abandoned, orphaned, nor has been in the agency‘s temporary custody for 12 of 22 months and the child cannot be placed with either parent within a reasonable time or should not be placed with parents based on an analysis
{¶9} In this case, in support of the first-prong requirements, the juvenile court found that CSB had proved by clear and convincing evidence that Father had abandoned J.B., and that J.B. had been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period. Although CSB had also alleged in its motion for permanent custody that J.B. cannot be placed with either parent within a reasonable time or should not be placed with his parents, the juvenile court did not make a finding in that regard. The five first-prong factors enumerated in
{¶10} This case presents an issue of first impression for this Court: whether a children services agency, that has filed a motion for permanent custody that has not been disposed, may file a subsequent motion for permanent custody prior to the commencement of the permanent custody hearing, to allege the additional first-prong ground that the child has now been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period, merely because of the passage of time. For the reasons that follow, this Court holds that, in these circumstances, the agency lacks authority to file a subsequent motion for permanent custody when its prior motion for permanent custody remains pending and has not yet been disposed.
{¶11}
{¶12} Based on a conflict certified by this Court, the Supreme Court of Ohio held that the “12 of 22” provision enacted in March 1999, may be invoked as first-prong grounds in a children services agency‘s motion for permanent custody only if the child has been in the agency‘s temporary custody for 12 or more months of a consecutive 22-month period at the time the agency files the motion. In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 26. The Supreme Court specifically stated that “[i]n other words, the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period set forth in
{¶13} In In re C.W., the high court repeatedly cited to this Court‘s opinion in In re K.G. in discussing its reasoning. In In re K.G., with regard to the “12 of 22” provision, this Court focused on the intent of the legislature to foster the concurrent goals of (1) limiting the time that a child spends in foster care, and (2) “preserving the family unit when possible.” 2004-Ohio-1421, at ¶ 19-22. This Court further noted that, notwithstanding the statutory advisory time limits in which the juvenile court should hear a motion for permanent custody, such hearings are unfortunately frequently not heard for many months after the agency has filed its motion. Id. at ¶ 23, 27; see also
[the agency] had no authority to move for permanent custody, alleging 12 months of temporary custody, until those facts had actually occurred. To hold otherwise would be to contrary to common sense and would certainly achieve an unjust result.
{¶14} The same reasoning is applicable in this case, where CSB filed an initial motion for permanent custody prior to J.B.‘s having been in the agency‘s custody for 12 months. The first motion did not allege “12 of 22” grounds. To allow CSB to wait until continuances of the permanent custody hearing resulted in the passage of time sufficient to support a finding that the child had been in the agency‘s temporary custody for more than 12 months, and then file a subsequent motion for permanent custody alleging “12 of 22” grounds, would also offend the intent of the legislature. Such tactics would allow the agency to file an initial motion for
permanent custody, effectively as a mere catalyst to cause the juvenile court to schedule a hearing. In instances when the hearing is (sometimes routinely) continued or delayed, albeit for good cause and for a reasonable period of time as permitted by
{¶15} CSB may file a motion for permanent custody at any time alleging grounds enunciated in
{¶16} The agency‘s allegations of the grounds supporting its request for permanent
Juv.R. 19 provides that a motion “shall state with particularity the grounds upon which it is made[.]” Implicit in that requirement is that the grounds alleged are grounds that presently exist and are based on facts that have already occurred.
{¶17} When CSB‘s first motion for permanent custody was filed, J.B. had not been in the temporary custody of the agency for 12 or more months. The agency‘s second motion for permanent custody did not supplant the first for reasons discussed above. Accordingly, Mother and Father had not received notice that they would have to defend against allegations that J.B. had been in the agency‘s temporary custody for at least 12 months.
{¶18} In the interests of justice, due process, and the common sense approach previously adopted by this Court in In re K.G., as well as in support of the legislative intent to both effect timely permanence for a child and preserve the family unit when possible, this Court holds that a children services agency has no authority to file a subsequent motion for permanent custody, alleging “12 of 22” grounds, when the agency‘s original and undisposed motion for permanent custody did not and factually could not allege such grounds. The agency may not take advantage of continuances and delays in the commencement of the permanent custody hearing scheduled in response to the first motion to allege additional grounds that the child has now been in the agency‘s temporary custody for at least 12 months. Accordingly, the juvenile court erred by premising its award of permanent custody on its finding that J.B. had been in the temporary custody of CSB for 12 or more months of a 22-month period. Mother‘s and Father‘s respective first assignments of error are sustained.
MOTHER‘S ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR IN PLACING J.B. IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER‘S ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED FATHER‘S PARENTAL RIGHTS BECAUSE THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶19} Mother and Father argue that the juvenile court‘s award of permanent custody was not supported by sufficient evidence and was against the manifest weight of the evidence. Based on this Court‘s resolution of Mother‘s and Father‘s first assignments of error, the remaining two assignments of error have been rendered moot, and we decline to address them. See App.R. 12(A)(1)(c).
III.
{¶20} Mother‘s and Father‘s respective first assignments of error are sustained. We decline to address the remaining two assignments of error. The judgment of the Summit County Court of Common Pleas,
Judgment reversed, and cause remanded.
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 App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
LYNNE S. CALLAHAN FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
ALEXANDRA HULL, Attorney at Law, for Appellant.
HOLLY FARAH, Guardian ad Litem.