In re J.D.B.
Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee, Portage County Department of Job and Family Services).
Neil P. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Appellant, Heather Butcher).
DIANE V. GRENDELL, J.
{¶1} Appellant, Heather Butcher, appeals the adjudication of the minor child, J.D.B., as a dependent and neglected child by the Portage County Court of Common Pleas, Juvenile Division. The issues before this court are whether an employee of a county department of jobs and family services may file a complaint to initiate juvenile proceedings; whether a court has discretion to deny a continuance on behalf of a litigant who was undergoing drug rehabilitation; whether a court may find that reasonable efforts were made to prevent a child‘s removal in the absence of specific instances of such efforts; and whether a child may be found dependent and/or neglected when the child is not homeless and his or her basic needs are being met. For the following reasons we affirm the decision of the court below.
{¶2} On March 2, 2017, Alexandra Toth of the Portage County Department of Job and Family Services filed a Neglect/Dependency Complaint with respect to J.D.B. based on her own “knowledge, information, and belief.” Toth alleged the following specific facts: “On March 1, 2017 Ravenna Police (RPD) ordered the removal of J.D.B. (D.O.B. 08/08/2003). His mother, Heather Butcher, brought him to stay with a family friend on February 24, 2017. She has not been heard from since that time and there is a ‘missing person’ report for her in Trumbull County. Heather is alleged to be drug involved. J.D.B.‘s father, Darnell Butcher, is currently incarcerated in Federal prison.”
{¶3} On the same date a shelter care hearing was held. The juvenile magistrate ordered J.D.B. committed to the interim pre-dispositional custody of the Portage County Department of Job and Family Services upon the determination that “neither parent could be located to care for the child and he was left in the care of a non-relative who could not reach [the child‘s] custodian.” A guardian ad litem was appointed and an adjudicatory hearing was scheduled for April 4, 2017.
{¶4} On March 16, 2017, Toth filed an Amended Complaint for Neglect/Dependency with respect to J.D.B. containing the additional allegations: “Ms. Butcher is currently hospitalized for mental health issues and is expected to be unable to care for J.D.B. for a significant period of time,” “has no housing available to her upon her release from the hospital,” and “has * * * not provided any way for J.D.B. to receive medical attention during her absence.”
{¶6} On April 4, 2017, the adjudicatory hearing was held before a juvenile court magistrate. Prior to the start of the hearing, counsel for Butcher moved for a continuance “advising the court that he had learned on today‘s date [that] Mother was in an in-patient treatment program.” The magistrate denied the motion.
{¶7} On April 14, 2017, a Magistrate‘s Decision was issued. The magistrate denied the Motion to Dismiss the Amended Complaint; found J.D.B. to be a dependent child pursuant to
{¶8} On April 17, 2017, Butcher filed an Objection to the Magistrate‘s Decision and, on May 4, 2017, Supplemental Objections. The Department of Job and Family Services filed its Response on May 24, 2017.
{¶9} On May 24, 2017, a hearing on objections was held.
{¶10} On June 19, 2017, the juvenile court issued a Journal Entry, denying Butcher‘s Objections.
{¶11} On June 21, 2017, Butcher filed a Notice of Appeal. On appeal, Butcher raises the following assignments of error:
{¶12} “[1.] The trial court erred in overruling the mother‘s motion to dismiss the complaints filed by an employee of the Portage County Department of Jobs and Family Services.”
{¶13} “[2.] The trial court erred in not ruling on all of Mother‘s objections to the magistrate‘s decision.”
{¶14} “[3.] The trial court erred in denying Mother a continuance of the adjudicatory hearing.”
{¶15} “[4.] The trial court committed reversible error by not making proper reasonable efforts findings at the adjudicatory hearing.”
{¶16} “[5.] The trial court erred in finding that the child was a neglected child under
{¶17} “[6.] The trial court erred in finding that the child was a dependent child under
{¶18} In the first assignment of error, Butcher argues “that the original filed complaint and the amended filed complaint by Ms. Toth constitutes an unauthorized practice of law, and therefore it constituted a legal nullity.” Appellant‘s brief at 3.
{¶19} According to the Rules of Juvenile Procedure: “Any person having knowledge of a child who appears to be a juvenile traffic offender, delinquent, unruly, neglected, dependent, or abused may file a complaint with respect to the child in the juvenile court of the county in which the child has a residence or legal settlement, or in which the traffic offense, delinquency, unruliness, neglect, dependency, or abuse occurred.”
{¶20} Similarly, the Revised Code provides: “any person having knowledge of a child who appears * * * to be an unruly, abused, neglected, or dependent child may file a sworn complaint with respect to that child in the juvenile court of the county in which the child has a residence or legal
{¶21} Butcher maintains that, “[f]or all purposes in this case, Ms. Toth‘s original and amended complaint was, and is, [Job and Family Services‘] complaint rather than Ms. Toth being the party in interest.” Accordingly, if Job and Family Services “wishes to file a complaint with the juvenile court under
{¶22} We reject Butcher‘s position that Toth lacked the capacity to initiate the neglect and dependency proceedings on behalf of the Department of Job and Family Services. There is no dispute that, under both the rule and statute, Toth qualifies as a “person having knowledge of a child who appears to be * * * neglected [or] dependent.” The determinative issue is whether, by filing and/or amending the Complaint, Toth was necessarily acting in a representative capacity on behalf of Portage County Job and Family Services’ interests. We conclude that she was not doing so based on the plain meaning of the statute and rule, the fundamental purpose of neglect/dependency proceedings, and applicable case law.
{¶23} It is significant that neither Juvenile Rule 10(A) nor
{¶24} Additionally, the position urged by Butcher is contrary to the underlying purpose of juvenile proceedings, which exist “[t]o provide for the care, protection, and mental and physical development of children subject to Chapter 2151,” and whose provisions “shall be liberally interpreted and construed so as to effectuate [this purpose].”
{¶25} Butcher‘s argument has been rejected by other appellate districts. In In re F.B., 9th Dist. Summit No. 27762, 2016-Ohio-3434, the court of appeals ruled:
Father has failed to demonstrate that the caseworker acted as a representative of CSB when she filed the complaints in this case. Instead, the record reveals that she herself was a “person” who had knowledge that the children appeared to be dependent. See
R.C. 2151.27(A) . The caseworker completed a form complaint, which was comprised primarily of her affidavit with facts about the children and their parents, with boxes checked for the alleged statutory bases of dependency and the interim and dispositional actions requested of the juvenile court. The caseworker filed nothing else with the trial court during this case nor did she represent the agency at any court appearances. It is not disputed that CSB was represented by a licensed attorney throughout these proceedings after the complaint was filed.
{¶26} Similarly, the court of appeals in In re Leftwich, 10th Dist. Franklin No. 96APF09-1263, 1997 WL 202247 (Apr. 22, 1997), held:
Thus, any individual, attorney or non-attorney, may file a complaint in juvenile court concerning a child who the complainant believes appears to be a delinquent, abused, unruly or dependent child. Accordingly, because [the caseworker] Rae had knowledge about the children, she could file a complaint on their behalf and the trial court did not err in permitting the complaint to go forward.
Id. at *2. See also Brooks, 117 Ohio St.3d 385, 2008-Ohio-1118, 884 N.E.2d 42, at ¶ 9 (affirming the dismissal of a writ for prohibition claiming that the complaint filed by a non-attorney employee of a county agency was a nullity because, inter alia, “[b]oth the Cuyahoga County Department of Children and Family Services and its employee who filed the complaint are persons generally authorized by [
{¶27} In the present case, Toth‘s involvement was limited to the filing of the initial Complaint and a subsequent amendment as authorized by Juvenile Rule 10(A) and
{¶29} In the second assignment of error, Butcher argues the appeal should be dismissed for lack of a final order with respect to her Objections to the Magistrate‘s Decision. Butcher acknowledges that the juvenile court “issued a journal entry overruling all Mother‘s objections,” but contends there is no final order because the court “did not make any specific rulings regarding Mother‘s objections regarding the magistrate‘s denial of her continuance; that the magistrate considered evidence subsequent to the date of the complaint; that the magistrate did not make proper findings regarding PCDJFS‘s ‘reasonable efforts’ at the adjudicatory hearing[;] that the magistrate improperly found that the child was neglected[;] and that the magistrate improperly found that the child was dependent.” Appellant‘s brief at 6.
{¶30}
{¶31} In the present case, we hold that the juvenile court complied with
{¶32} The second assignment of error is without merit.
{¶33} In the third assignment of error, Butcher argues that the magistrate erred by denying her oral motion for a continuance of the adjudicatory hearing.
{¶34}
{¶35} “In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each
{¶36} “The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge.” Id. at syllabus; State ex rel. Buck v. McCabe, 140 Ohio St. 535, 45 N.E.2d 763 (1942), paragraph one of the syllabus. “[A]n appellate court will not interfere with the exercise of this discretion unless the action of the court is plainly erroneous and constitutes a clear abuse of discretion.” Buck at 538.
{¶37} In the present case, counsel for Butcher sought a continuance at the start of the April 4 adjudicatory hearing:
Your Honor, I received a call today from my client‘s mother, the grandmother in this case. Her daughter, my client the Mother, Heather Butcher, is currently in a detox program in Warren, Ohio, the First Step Addiction and Recovery Program. She will be there until this coming Saturday. She asked me to ask the Court on behalf of her daughter. Her daughter wanted to be here today, but her recovery -- and if she left the program she would fail and she wouldn‘t be able to complete it. I‘m asking for just a one week continuance at a minimum, whatever the Court‘s schedule is. She gets out this coming Saturday. I‘d ask the Court to consider. I would argue respectively [sic], your Honor, that this does allege * * * dependency and neglect, that * * * my client‘s rights are paramount in this case. They will be contested, and I ask the Court [to] allow her to participate. And I know it was set for hearing, and I know it‘s her fault for not being here so I understand all that as well, but I‘m asking for a one time one week -- minimum one week continuance.
{¶38} We find no abuse of discretion. Admittedly, a one-week continuance is not unreasonable and Butcher had a significant interest in being able to present her own testimony at the adjudicatory hearing. These considerations, however, did not require the magistrate to grant the continuance. As acknowledged by counsel, Butcher‘s absence was her own fault. The date of the adjudicatory hearing was scheduled a month before on March 2. Yet the request for a continuance was not made until the day of hearing and came, not from Butcher, but from her mother on her behalf. Three witnesses were present at court to testify on behalf of Job and Family Services. Counsel claimed that a one-week continuance was necessary “at a minimum,” but the magistrate had no assurance that this was accurate in light of the fact that counsel was apparently unaware that his client was in rehab and unavailable to testify until notified by a third party. In re J.E., 2017-Ohio-8272, 100 N.E.3d 151, ¶ 14 (3d Dist.) (“[t]he propriety of denying a request for a continuance is * * * supported when a defendant requests a continuance for a legitimate reason but also contributed to the circumstances giving rise to the request” and “[w]hen a defendant faces ongoing drug addiction and is without stable housing such that a continuance would not likely change the outcome“).
{¶39} Butcher further argues that a one-week continuance would still have allowed for the dispositional hearing to be held within the ninety-day limit fixed by
{¶40} The third assignment of error is without merit.
{¶41} In the fourth assignment of error, Butcher argues the juvenile court failed to make proper findings regarding Portage County Department of Job and Family Services’ reasonable efforts to prevent J.D.B.‘s removal.
{¶42} At an adjudicatory hearing “at which the court removes a child from the child‘s home or continues the removal of a child from the child‘s home, the court shall determine whether the public children services agency or private child placing agency that filed the complaint in the case, removed the child from home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child‘s home, to eliminate the continued removal of the child from the child‘s home, or to make it possible for the child to return safely home.”
{¶43} The juvenile court in the present case found: “Reasonable efforts based upon the child‘s health and safety were made to prevent the removal of the child from the home, to eliminate the continued removal of the child from the home or to make it possible for the child to safely return home and the continuation in the home would be contrary to the welfare of the child.” The court incorporated the following factual findings made by the magistrate:
6. PCDJFS took physical custody of [J.D.B.], and initially placed him with maternal grandmother. Due to behavioral issues of [J.D.B.] while in grandmother‘s care, [J.D.B.] was next placed with maternal grandfather, where he is presently placed;
7. Alexandra Toth (Toth), the PCDJFS case worker, investigated the family and learned that Darnell Butcher, biological father of [J.D.B.], is in Federal Prison until 2029;
8. Toth communicated with family members of [J.D.B.], but none of them were willing to accept temporary custody of [J.D.B.], advising that they did not want to raise him;
9. Approximately one (1) week after the removal, Toth was able to locate Mother and discuss her situation over the telephone;
10. Mother acknowledged she was homeless, living out of a car. Mother further admitted to being a regular heroin user, spending between $150.00-$300.00 per day on the drug;
* * *
13. Mother acknowledged to Toth that she has a drug problem and is in need of treatment and counseling, admitting that due to these issues, Mother is unable to properly care for [J.D.B.];
* * *
16. Toth made referrals to Mother regarding treatment, although Mother was already aware of some treatment facilities; * * *.
{¶44} We find the juvenile court‘s findings of fact were sufficient to support its
{¶45} Butcher contends that, although the juvenile court made a reasonable efforts determination, “no further explanation or details was provided or given.” Appellant‘s brief at 9-10. Butcher fails to acknowledge the court‘s findings, quoted above, but rather relies on this court‘s decision in In re H.C., 11th Dist. Portage No. 2014-P-0059, 2015-Ohio-3545, wherein this court reversed for failure to make proper findings. In H.C., this court was “unable to determine from the record whether [the court‘s] findings * * * appl[ied] to any attempt to return H.C. to his home,” and noted that “no other findings are provided with regard to reunification attempts.” Id. at ¶ 44. H.C. is easily distinguishable inasmuch as Butcher‘s homelessness precluded reunification efforts at the time of the adjudicatory hearing.
{¶46} The fourth assignment of error is without merit.
{¶47} In the fifth and sixth assignments of error, Butcher argues the juvenile court erred in its determination that J.D.B. was neglected and dependent.
{¶48} In order to make a finding of neglect, the juvenile court had to determine by clear and convincing evidence that J.D.B. “lack[ed] adequate parental care because of the faults or habits of the child‘s parents, guardian, or custodian,” and/or his “parents, guardian, or custodian neglect[ed] the child or refuse[d] to provide proper or necessary subsistence, education, medical or surgical care or treatment, or other care necessary for the child‘s health, morals, or well being.”
{¶49} In order to make a finding of dependency, the juvenile court had to determine by clear and convincing evidence that J.D.B. was “homeless or destitute or without adequate parental care, through no fault of the child‘s parents, guardian, or custodian“; “lack[ed] adequate parental care by reason of the mental or physical condition of the child‘s parents, guardian, or custodian“; and/or his “condition or environment is such as to warrant the state, in the interests of the child, in assuming the child‘s guardianship.”
{¶50} In support of the neglect and dependency adjudications, the juvenile court adopted the following factual findings:
1. Deborah May (May) contacted the Ravenna Police Department on March 1, 2017, regarding [J.D.B.], who had been placed into May‘s physical custody by mother, and maternal grandmother. Mother and May have known each other for years and when [J.D.B.] was approximately two (2) years old, May had cared for him for a period of time;
2. May received [J.D.B.] from Mother with the understanding that Mother was going to follow up a few days later and provide May with documentation which
would allow May to obtain medical care and other necessities for [J.D.B.] while he was in May‘s physical care; 3. Mother never returned to May‘s residence to provide the documentation;
4. May attempted to contact Mother a couple of time[s] a day for several days. After having physical custody of [J.D.B.] for about one (1) week and being unable to contact Mother over this time period, May went to the Ravenna Police Department to determine what she could do to continue to care for [J.D.B.];
5. Upon learning of the situation, including Mother‘s unknown whereabouts, Officer Tyler Lohr (Lohr), a police officer with the Ravenna Police Department, ordered a removal of [J.D.B.], and contacted PCDJFS to assist in the removal * * *.
{¶51} Butcher‘s principal contention against the neglect and dependency adjudications is that J.D.B. was receiving adequate parental care while in May‘s custody. With respect to neglect, Butcher argues that “there was no evidence presented that the child was suffering from inadequate parental care, or that if there was any, it was due to the faults or habits of Ms. May.” Appellant‘s brief at 11. Likewise, with respect to dependency, Butcher argues “there was no evidence presented that the child was homeless or destitute * * *[,] lacked adequate parental care, as all of his basic needs were being met by Ms. May,” or that “Ms. May‘s conduct had an adverse impact on the child.” Appellant‘s brief at 13-14. As the Ohio Supreme Court has recognized, “the parent‘s voluntary act of temporarily placing the child with a responsible relative is an indicator of proper parental care,” and “the care furnished by the relative can be imputed to the parent.” In re Riddle, 79 Ohio St.3d 259, 263, 680 N.E.2d 1227 (1997). “In such situations, the state has no interest in assuming guardianship since the obligations of care, custody, and support are being met.” (Citation omitted.) Id.; In re O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632, ¶ 13 (“[w]hen a child is receiving proper care from her parents or relatives to whom the parent has entrusted the child‘s care, then the child is not a dependent child“) (citation omitted).
{¶52} While Butcher‘s statement of the law regarding neglect and dependency is accurate, that law does not apply to the facts of the present case. Contrary to Butcher‘s position, May, according to her own testimony, was not providing J.D.B. adequate parental care and was unable to do so because Butcher failed to provide her with the necessary authorization to properly attend to his educational and medical needs, a situation exacerbated by May‘s inability to locate or contact Butcher and caused by Butcher‘s drug addiction.
{¶53} May testified that she was messaged by J.D.B. from school because he “was getting in trouble.” May “was not aware that [she] wasn‘t on any of the papers at school * * * until [this] happened.” Upon learning that she could not communicate with school officials regarding J.D.B. since she “was not on the paperwork to talk to them,” May “called the C.A.R.E.S. line asking advice and * * * went to the Ravenna Police Department.”
{¶54} May testified similarly with respect to J.D.B.‘s medical needs: “If something happened there was no medical I could do for him. * * * He needs counseling. I mean just things like that. I couldn‘t take him anywhere.” Accordingly, May did not feel that she was capable of either ascertaining or addressing J.D.B.‘s medical needs.
{¶55} In sum, Butcher was found to have a caused a situation where J.D.B.
{¶56} The fifth and sixth assignments of error are without merit.
{¶57} For the foregoing reasons, the adjudication of J.D.B. as a neglected and dependent child is affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
COLLEEN MARY O‘TOOLE, J., dissents, with Dissenting Opinion.
{¶58} Finding merit in Ms. Butcher‘s first assignment of error, I would reverse and remand, while finding the remaining assignments of error moot.
{¶59} I do not believe Ms. Toth had standing to file the complaint and amended complaint in this action. As we stated in JPMorgan Chase Bank, Natl. Assn. v. Hudson, 11th Dist. Ashtabula No. 2014-A-0068, 2015-Ohio-1490:
{¶60} “‘Standing is certainly a jurisdictional requirement; a party‘s lack of standing vitiates the party‘s ability to invoke the jurisdiction of a court-even a court of competent subject-matter jurisdiction-over the party‘s attempted action. [Fed. Home Loan Mtge Corp. v.] Schwartzwald [134 Ohio St.3d 13, 2012-Ohio-5017] at ¶ 22; [State ex rel.] Tubbs Jones [v. Suster], 84 Ohio St.3d [70 (1998)] at 77 * * *; State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 178, * * * (1973). But an inquiry into a party‘s ability to invoke a court‘s jurisdiction speaks to jurisdiction over a particular case, not subject-matter jurisdiction.
{¶61} “‘A determination of standing necessarily looks to the rights of the individual parties to bring the action, as they must assert a personal stake in the outcome of the action in order to establish standing. Ohio Pyro, Inc. v. Ohio Dep‘t. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, * * * ¶27. Lack of standing is certainly a fundamental flaw that would require a court to dismiss the action, Schwartzwald at ¶ 40, and any judgment on the merits would be subject to reversal on appeal. But a particular party‘s standing, or lack thereof, does not affect the subject-matter jurisdiction of the court in which the party is attempting to obtain relief. Tubbs Jones at 77.’ (Emphasis sic.) (Citations and parallel citations omitted.)” Hudson at ¶21-22, quoting Bank of A., N.A. v. Kuchta, 141 Ohio st.3d 75, 2014-Ohio-4275, ¶22-23.
{¶62} Ohio courts have consistently held that corporate officers and agents have no standing to file pleadings on behalf of the corporation. See, e.g., Smith v. Mighty Distributing of S.W., PA, Inc., 11th Dist. Trumbull No. 2004-T-0056, 2005-Ohio-1689, ¶10 (collecting cases.) I do not read Juvenile Rule 10(A) nor
{¶63} Rather, I look to
{¶64} I respectfully dissent.
COLLEEN MARY O‘TOOLE
JUDGE