IN RE: M.F., ABUSED AND DEPENDENT CHILD. [JUAN FLORES - APPELLANT].
CASE NO. 7-15-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
October 13, 2015
2015-Ohio-4224
PRESTON, J.
Appeal from Henry County Common Pleas Court Juvenile Division Trial Court No. 20053020 Judgment Reversed and Cause Remanded
Alan J. Lehenbauer for Appellant
J. Hawken Flanagan for Appellee
{¶1} Appellant, Juan Flores (“Flores“), appeals the March 10, 2015 judgment entry of the Henry County Court of Common Pleas, Juvenile Division, granting permanent custody of his child, M.F., to appellee, the Henry County Department of Job and Family Services (the “Agency“). For the reasons that follow, we reverse.
{¶2} On October 27, 2005, the Agency filed a complaint alleging that M.F. is an abused and dependent child under
{¶3} Following an adjudicatory hearing on January 12, 2006, the trial court filed a judgment entry on April 18, 2006 granting the Agency leave, based on the agreement of the parties, to amend the complaint. (Doc. No. 22). Based on Flores‘s admission that M.F. is an abused and dependent child as alleged in the amended complaint, the trial court adjudicated M.F. an abused and dependent child as alleged in the amended complaint. (Id.). The trial court ordered that M.F. remain in the Agency‘s temporary custody. (Id.).
{¶4} On June 4, 2009—following a hearing on a motion for permanent custody or, alternatively, for a planned permanent living arrangement (“PPLA“)
{¶5} On August 13, 2014, the Agency filed a motion for permanent custody of M.F. (Doc. No. 238).
{¶6} On August 18, 2014, the trial court held an initial appearance on the Agency‘s August 13, 2014 motion for permanent custody. (See Doc. No. 270 at 16, ¶ 73). At that hearing, the trial court advised Flores of his rights and the potential dispositions in the case. (Id.).
{¶7} The trial court held a permanent-custody hearing on November 25 and 26 and December 10, 2014. (See Doc. No. 270).
{¶8} On March 10, 2015, the trial court filed its judgment entry awarding permanent custody of M.F. to the Agency. (Id.).
{¶9} Flores filed his notice of appeal on April 6, 2015. (Doc. No. 272). He raises three assignments of error for our review. While we ultimately sustain Flores‘s third assignment of error based on one of the arguments he makes under that assignment of error, we must first address Flores‘s first and second assignments of error, which concern the jurisdiction of this court and the trial court.
Assignment of Error No. I
This appellate court lacks jurisdiction because the judgment entry of the trial court is not a final appealable order.
{¶11} “An appellate court can review only final orders, and without a final order, an appellate court has no jurisdiction.” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 10. See also
{¶12} A judgment entry awarding permanent custody of a child to a children services agency—thereby terminating a parent‘s parental rights to the
{¶13} Here, the trial court‘s March 10, 2015 judgment entry awarded permanent custody of M.F. to the Agency: “Now, therefore, based upon the findings set out above, the following orders are issued: * * * The Agency‘s motion for Permanent Custody is granted and the disposition is changed to Permanent Custody to the Agency with the goal of adoption.” (Doc. No. 270 at 53). Accordingly, the March 10, 2015 judgment entry is a final appealable order. See In re Baby Boy W. at ¶ 11. Flores does not direct us to any authority indicating that the trial court was required to include in its judgment entry language expressly divesting him of his parental rights, and we conclude that it was not required to do so to render the March 10, 2015 judgment entry a final appealable order. See In re Sims, 7th Dist. Jefferson No. 02-JE-2, 2002-Ohio-3458, ¶ 43 (“[
{¶14} Also erroneous is Flores‘s argument that, under
{¶15} Flores‘s first assignment of error is overruled.
The trial court lacked jurisdiction because appellant was not provided certain procedural safeguards, including notice as set forth in R.C. 2151.414(A)(1) and notice of the R.C. 2151.413 basis for appellee Agency‘s motion for permanent custody.
{¶16} In his second assignment of error, Flores argues that he was not served with a summons and copy of the August 13, 2014 motion for permanent custody as required by
{¶17} “A challenge to a trial court‘s jurisdiction is reviewed de novo upon appeal.” In re J.M., 3d Dist. Wyandot No. 16-12-01, 2012-Ohio-4109, ¶ 15, citing In re L.B., 9th Dist. Summit No. 26034, 2012-Ohio-905, ¶ 6. “Under the de novo standard of review, the appellate court may substitute, without deference, its judgment for that of the trial court.” Id., citing Arnett v. Precision Strip, Inc., 3d Dist. Auglaize No. 2-11-25, 2012-Ohio-2693, ¶ 10.
{¶18} “Chapter 2151 of the Ohio Revised Code addresses the means by which notice of the filing of a motion for permanent custody and notice of the hearing on such motion must be given to a parent.” In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-6374, ¶ 10. Specifically,
Upon the filing of a motion * * * for permanent custody of a child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the action and to the child‘s guardian ad litem.
That statute also sets forth the required contents of a notice issued under it.
{¶19} ”
Service of summons, notices, and subpoenas * * * shall be made by delivering a copy to the person summoned, notified, or subpoenaed, or by leaving a copy at the person‘s usual place of residence. If the juvenile judge is satisfied that such service is impracticable, the juvenile judge may order service by registered or certified mail.
That statute also explains the circumstances under which service by publication may be utilized.
{¶22} Nevertheless, even assuming Flores was not served with the summons and copy of the motion, he waived any objection to inadequacy of the notice because he failed to argue to the trial court that the notice was inadequate under
{¶23} We also reject the two additional arguments that Flores makes under this assignment of error: (1) that the Agency did not comply with
{¶24} “‘An appellate court will not consider any error which a party complaining of a trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.‘” In re S.T., V.T. & P.T., 9th Dist. Summit No. 22665, 2005-Ohio-4793, ¶ 9, quoting LeFort v. Century 21–Maitland Realty Co., 32 Ohio St.3d 121, 123 (1987). “Failure to raise a timely objection, may be found to result in a waiver of the alleged error.” Id., citing Lefort at 123.
{¶25} The record reveals that Flores could have called but did not call to the trial court‘s attention these two arguments—noncompliance with
Assignment of Error No. III
The trial court erred in granting appellee Agency‘s motion for permanent custody.
{¶27} In his third assignment of error, Flores makes four arguments, the first of which consists of three sub-arguments. First, he argues that “the trial court failed to comply with permanent custody statutes and to make requisite findings.” (Appellant‘s Brief at 13). Second, he argues that the Agency was prohibited from filing a motion for permanent custody because
{¶28} Below, we will first address and reject two sub-arguments under Flores‘s first argument, and we will also address and reject his third argument. Then we will address and find merit in one of Flores‘s sub-arguments under his first argument. Finally, we will find moot Flores‘s second and fourth arguments.
{¶30} When considering a motion for permanent custody of a child, the trial court must comply with the statutory requirements set forth in
may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
* * *
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *.
{¶31} “If the trial court determines that any provision enumerated in
[T]he court shall consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *;
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶32} A trial court commits reversible error if it fails to make one of the determinations required under
{¶33} We first address Flores‘s arguments under this assignment of error that we find not well taken. In one sub-argument under his first argument, Flores argues, “The plain language of [
Except as provided in division (D)(3) of this section, if a child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, the agency with custody shall file a motion requesting permanent custody of the child.
(Emphasis added.)
{¶34} Next, also in a sub-argument under his first argument, Flores argues that the trial court erred by failing to specify whether its decision to grant permanent custody was based on
{¶35} Nevertheless, we find merit in one of Flores‘s sub-arguments under his first argument under this assignment of error. We conclude that the trial court failed to make one of the determinations required under
{¶36} In its March 10, 2015 judgment entry, the trial court issued the following orders, among others:
First: The Agency‘s motion for Permanent Custody is granted and the disposition is changed to Permanent Custody to the Agency with the goal of adoption.
Second: In the event that [M.F.‘s foster parents] adopt [M.F.] they are strongly urged to continue, at a minimum, the amount of contact that [M.F.] presently shares with her father.
(Doc. No. 270 at 53). Before issuing its orders, the trial court, in its March 10, 2015 judgment entry, found, “In this case, [M.F.] has been in the temporary custody of the [Agency] for more than twelve months of a consecutive twenty-two month period * * *.” (Doc. No. 270 at 33-34). However, nowhere in the March 10, 2015 judgment entry or elsewhere did the trial court determine that granting permanent custody of M.F. to the Agency is in M.F.‘s best interest. In fact, the trial court stated in its March 10, 2015 judgment entry, on one hand, “It is in [M.F.‘s] best interest that she continues to have a relationship with her father.” (Doc. No. 270 at 51). On the other hand, the trial court stated, “All of the professionals involved, with the exception of [M.F.‘s guardian ad litem], opined
{¶37} We hold that the trial court must find that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody.
{¶38} Flores‘s third assignment of error is sustained insofar as the trial court failed to make the required best-interest finding, as discussed above. The remainder of Flores‘s arguments under his third assignment of error—namely, his second and fourth arguments—which we have not addressed and which concern the merits of a best-interest determination and the manifest weight of the evidence, are moot, and we decline to address them.
{¶40} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
ROGERS, P.J. and SHAW, J., concur.
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