In re Lu.M-R.
Rendered on December 29, 2022
On brief: Kidd & Urling LLC, and Thomas W. Kidd, Jr. for appellant. Argued: Thomas W. Kidd.
On brief: Robert J. McClaren for appellee Franklin County Children Services. Argued: Erin Burton.
On brief: Michelle Mumaw for appellee CASA Franklin County, Guardian ad Litem.
APPEAL from the Franklin County Court of Common Pleas Division of Domestic Relations, Juvenile Branch
JAMISON, J.
{1} Appellant, R.R., appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting temporary custody of her minor children Lu.M-R. and Lo.M-R. to Franklin County Children Services (“FCCS“). For the following reasons, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
I. FACTS AND PROCEDURAL HISTORY
{3} The adjudication hearing began on February 22, 2021, and spanned several days of testimony, concluding on March 22, 2021. A dispositional hearing was held on March 23, 2021. In a decision filed on April 19, 2021, Lu.M-R. and Lo.M-R. were found to be dependent, and temporary custody was granted to FCCS. Critical to this appeal, the court also retroactively granted first and second extensions of temporary custody and adopted a case plan.
{4} On March 23, 2021, FCCS filed a motion for permanent custody, and filed an amended motion for permanent custody on April 22, 2021. The matter has not been heard.
{5} R.R. filed objections to the magistrate‘s decision challenging the retroactive extensions of temporary custody only; she did not challenge the adjudication of temporary custody to FCCS. On November 23, 2021, the objections were overruled.
{6} On December 17, 2021, R.R. filed this appeal. J.R. has not appealed from the trial court‘s ruling.
II. ASSIGNMENTS OF ERROR
{7} Appellant assigns the following as trial court error:
- [1.] By retroactively granting temporary custody orders, the Magistrate deviated from the carefully-calibrated process crafted by the General Assembly.
- [2.] The Magistrate‘s retroactive temporary custody orders deprived [R.R.] of her rights as a parent, in violation of state law and the Fourteenth Amendment.
{8} A trial court‘s decision of a motion to extend temporary custody is reviewed for an abuse of discretion. In re E.T., 9th Dist. No. 22720, 2005-Ohio-6087, 9.
{9} “Appellate courts ‘generally review a trial court‘s adoption, denial or modification of a magistrate‘s decision for an abuse of discretion.‘” In re L.C.C., 10th Dist. No. 18AP-167, 2018-Ohio-4617, ¶ 15, citing Brunetto v. Curtis, 10th Dist. No. 10AP-799, 2011-Ohio-1610, ¶ 10. “This is also, more specifically, the standard of review for a juvenile court‘s decision for temporary custody.” In re B.J., 9th Dist. No. 104800, 2017-Ohio-315, 15.
{10} R.R.‘s appeal only addresses legal issues and does not challenge the weight or sufficiency of the evidence. Where the appeal presents only a question of law, the standard of review is de novo. In re T.A., 9th Dist. No. 19CA0025-M, 2020-Ohio-3613, 8. As the underlying matter in this case involves whether the trial court may issue retroactive orders, the standard of review is de novo.
IV. LEGAL ANALYSIS
{11} Because the assignments of error are related, I shall address them together.
{12} Pursuant to
{13} “Temporary custody is a status created by statute to provide interim care for Ohio children alleged to be * * * dependent.” In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 8.
{14} A juvenile court is empowered by
{16} There is a temporary custody sunset provision that prohibits a period of temporary custody in excess of two years.
{17}
{18}
{20} However, because temporary custody was awarded to FCCS at each refiling, FCCS maintained custody continuously from the date of removal until disposition, at which time FCCS was again awarded temporary custody. I believe the refilings of the complaint was necessary under the circumstances and not a means of extending temporary custody beyond the two-year limit.
{21} A case plan with a goal of reunification was prepared, but was not approved and adopted by the court until disposition in March 2021. The parents and children have been linked to services since March 2019. R.R. is required to complete a mental health assessment, a psychological evaluation, a psychological assessment, a DV assessment, and to participate in family counseling and parenting classes. The case plan also requires R.R. to not administer any physical discipline to the children and to provide accurate and honest information. R.R.‘s counsel indicated that some of the requirements had been completed and that R.R. is “seeking to comply as quickly as possible.” (Mar. 23, 2021 Tr. at 12.)
{22} The record sheds no light on how R.R.‘s ability to work towards reunification predisposition was frustrated. R.R. attended review meetings, but refused to participate in services or communicate with the caseworker or the guardian. (Tr. at 26.) R.R. has been actively participating since disposition in March 2021 and visits with the children regularly.
{23} The children were removed on March 28, 2019. Predisposition temporary custody was awarded to FCCS at a preliminary hearing on March 29, 2019, and FCCS maintained continuous temporary custody through several dismiss and refilings until the matter was adjudicated and disposed. R.R.‘s arguments totally ignore the children have already been in the temporary custody of FCCS for two years, and the court has no authority to issue another order of temporary custody to extend past the two-year maximum.
{25} While this court recognizes that suitable parents always have a paramount right to the custody of their children and that termination of parental rights “is the family law equivalent of the death penalty in a criminal case,” this is not a permanent custody matter. In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). The award of temporary custody is “not as drastic a remedy as permanent custody.” In re L.D., 10th Dist. No. 12AP-985, 2013-Ohio-3214, 17. Because a granting of temporary custody does not divest parents of their fundamental parental rights, the parent can continue to fight for their children. Id.
{26}
{27} FCCS filed a motion for permanent custody. R.R. argues that the 22-month period outlined in
{28} It is noteworthy that R.R.‘s appeal does not challenge the award of temporary custody to FCCS. R.R.‘s counsel stated during the dispositional hearing that “we‘re obviously not contesting custody - - - temporary custody to the agency.” (Tr. at 10.) Even
{29} R.R. is not attempting to have her children returned to her immediately, but argues that the 22-month lookback period starts in March 2021, and that FCCS is foreclosed from filing a permanent custody motion until January 2023. While R.R. contends that the children must have been in temporary custody pursuant to
{30} The “‘12 of 22’ provisions set forth in
{31} Because R.R. requests more time to reunify, I find there is no additional time permitted under the statutes, and cannot sustain her argument.
V. CONCLUSION
{32} Because the evidence in the record supports the trial court‘s judgment, R.R.‘s first, and second assignments of error are overruled. The decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.
KLATT, J., concurring in judgment only.
MCGRATH, J., concurring in judgment only.