IN RE N.M.P.
No. 2018-1842
Supreme Court of Ohio
April 16, 2020
2020-Ohio-1458
Submittеd July 9, 2019. CERTIFIED by the Court of Appeals for Portage County, No. 2018-P-0056, 2018-Ohio-5072.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re N.M.P., Slip Opinion No. 2020-Ohio-1458.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Cоlumbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-1458
IN RE N.M.P.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re N.M.P., Slip Opinion No. 2020-Ohio-1458.]
Domestic relations—Parental rights—
DONNELLY, J.
{¶ 1} This is a certified-conflict case from the Eleventh District Court of Appeals involving the interpretation of
“In a custody proceeding in which an agency has filed for permanent custody pursuant to
R.C. 2151.414(B)(1)(d) , must the agency establish by clear and convincing evidence that the child has been in the temporary custody of one or more children services agencies for a total of 12 months of a consecutive 22 month period of agency involvement?”
(Emphasis added.) 154 Ohio St.3d 1519, 2019-Ohio-768, 118 N.E.3d 257, quoting 11th Dist. Portage No. 2018-P-0056 (Dec. 27, 2018).
{¶ 2} We answer the certified issue in the negаtive. Accordingly, we affirm the judgment of the Eleventh District Court of Appeals.
Facts and Procedural Background
{¶ 3} Appellant N.H. is the biological mother of the minor child, N.M.P. In a previous case, N.M.P. was placed into shelter care with appellee, the Portage County Department of Job and Family Services (“agency“), following a hearing on March 12, 2015. On April 24, 2015, N.M.P. was determined to be a dependent child and was placed in the temporary custody of the agency. Two six-month temporary-custody extensions were granted because the mother was in substantial compliance with the case plan. On March 14, 2017, N.M.P. was returned to the mother and that case was terminated.
{¶ 4} Approximately two months later, on May 17, 2017, mother returned N.M.P. to his previous foster parents and self-reported her inability to care fоr him. On May 25, 2017, a new complaint for temporary custody was filed by the agency and a shelter-care hearing was held. The mother stipulated to placing the child in the care of the agency. On June 22, 2017, N.M.P. was again found to be a dependent child and the agency was given temporary custody. On August 30, 2017, a case plan was adopted and temporary custody was continued.
{¶ 6} On June 5, 2018, the agency filed a motion for permanent custody of N.M.P. under
Analysis
Advisory-Opinion Argument
{¶ 7} Before addressing the issue that was certified for our review, we must address the agency‘s contention that we should dismiss the appeal because it seeks an advisory opinion. The agency has not questioned our jurisdiction to answer the certified issue. Instead, according to the аgency, resolving the certified question would not matter here inasmuch as the court of appeals upheld the trial court‘s granting of permanent custody not only after finding that the child had been in the agency‘s temporary custody for 12 or more months of a consecutive 22-month period,
{¶ 8} Our authority to hear this case is based on
{¶ 9} In this case, there is no dispute that the Eleventh District court found that its judgment based on its reading of
{¶ 10} The agency nevertheless now argues that regardless of how we might resolve the certified-conflict issue, that will have no effect in this case in light оf the alternative permanent-custody grounds of abandonment. The agency did not file any opposition to the mother‘s motion for certification of a conflict in the court of appeals. Nor did the agency file any objection to the certification before we determined on March 6, 2019, that a conflict existed. The agency‘s failure to challenge certification at any time before it filed its merit brief waived any objection to
{¶ 11} Because the Eleventh District‘s interpretation of the legal issue before it is in conflict with another appellate district‘s interpretation of a rule of law, the court of appeals properly certified the case to this court even though our resolution of that issue may not affect the underlying trial-court judgment. See State v. Edmondson, 92 Ohio St.3d 393, 396, 750 N.E.2d 587 (2001) (this court had jurisdiction even though resolution of certified conflict would not affect appellant‘s conviction on a lesser included offense).
{¶ 12} And, finally, we address the issue certified to us because of its importance in determining when a parent‘s custodial rights may be subject to permanent termination. See Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, at ¶ 18 (court may exercise disсretion to answer certified issue that is of public or great general interest).
Merits Determination
{¶ 13} In this case we are asked to construe
{¶ 14} Here
{¶ 15} In order to terminate parental rights and grant permanent custody to the agency,
the court dеtermine[] at the hearing * * * 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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code , the child was previously in the temporary сustody of an equivalent agency in another state.
{¶ 16} For purposes of division (B)(1), a child is considered to have entered the temporary custody of an agency on the earlier of the date of adjudication under
{¶ 17} An agency cannot seek permanent custody under
{¶ 19} In this case, the mother contends that we should interpret
{¶ 20} The mother relies on the conflict case of In re K.L., 2017-Ohio-9003, at ¶ 48, in which the Sixth District interpreted the 22-month period in
If the 22-consecutive months does not mean 22 months of agency involvement, there was no need to set forth that number in the statute. Instead, the statute would have required permanent custody to have been sought after 12 months of temporary custody had expired, regardless of whether temporary custody was intermittent or continuous.
{¶ 21} It is a cardinal rule of statutory construction that a statute‘s meaning is determined by the language that is used. If the language is clear and unambiguous, we apply the statute as written and refrain from adding or deleting words. Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, 37 N.E.3d 147, ¶ 24; State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81, 676 N.E.2d 519 (1997).
{¶ 22} To decide this case, we need look no further than the language of the statute.
{¶ 23} To meet the statutory requirement that a child be in the custody of a children-services agency for 12 or more months of a consecutive 22-month period, the child might have been placed in the agency‘s custody for one continuous period or the child might have been placed in the agency‘s custody, removed from the agеncy‘s custody, and then returned to the agency‘s custody.
There is nothing in the plain language of the statute that requires a public agency to wait until a child has been in its custody for twenty-two months before filing a motion for permanent custody. The statute requires only that the child must have been in the custody of a public agency for twelve or more months of a consecutive twenty-two-month period. This might include a situation where a child had been in temporary custody for six months on one occasion, was briefly out of agency custody, and then returned to temporary custody for another six months—all within a consecutive twenty-two-month period. It may also include a situation where a child has been in the temporary custody of an agency for twelve consecutive months.
In re T.B., 9th Dist. Summit No. 21124, 2002-Ohio-5036, ¶ 23; see also In re J.R., 1st Dist. Hamilton No. C-190342, 2019-Ohio-3500, ¶ 27.
{¶ 24} In other words, the 22-consecutive-month requirement serves as a limitation period that defines a prescribed period of time to quantify the duration of the agency‘s temporary custody. In re I.D., 7th Dist. Columbiana No. 09 CO 13, 2009-Ohio-6805, ¶ 43. It does not prescribe some minimum period of time of agency involvement with the child.2
{¶ 25} Here, N.M.P. was initially adjudicated a dependent child on April 24, 2015, and he remained in the tempоrary custody of the agency until March 14, 2017. N.M.P. was then returned to the mother for approximately two months. N.M.P. was again adjudicated a dependent child on June 22, 2017, and placed in the temporary custody of the agency. The agency filed its motion for permanent custody on June 5, 2018. Twenty-two months elapsed between August 5, 2016, and June 5, 2018. During those 22 months, N.M.P. was in the temporary custody of the agency for over 18 months. Thus, N.M.P. was in the temporary custody of the agency for 12 or more months of a consecutive 22-month period, and the agency was entitled to seek permanent custody if it was in N.M.P.‘s best interests.
{¶ 26} In so holding, it is important to remember that a determination that a child has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period only authorizes the agency to seek permanent custody. The agency still must prove by clear
{¶ 27}
{¶ 28} Our finding today is consistent with the overall purposes of Ohio‘s child-welfare laws and our determination in In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 22, in which we found that the 12-of-22 provision in
{¶ 29} Accordingly, we will not interpret
Judgment affirmed.
O‘CONNOR, C.J., and FRENCH and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
DEWINE, J., dissents, with an opinion joined by FISCHER, J.
DEWINE, J., dissenting.
{¶ 30} The majority gives some advice for future cases, but it says nothing that impacts the resolution of this case. Because I do not think this court should be writing advisory opinions, I would dismiss this appeal as improvidently granted.
{¶ 31} This court accepted a certified conflict to assess what is required to grant a permanent custody order under
{¶ 32} That may be a sensible resolution of that legal issue, but it‘s not something this court should be addressing in this case. The reason why is that, as the majority admits, nothing this court says about the 12-of-22 issue can change the outcome. This is so because the court of appeals gave two independent reasons for its decision to grant permanent custody to JFS. It held that JFS was entitled to custody based оn the 12-of-22 rule and that JFS was entitled to custody because N.M.P was an abandoned child. There has been no challenge to the abandonment determination. Thus, regardless of which way we decide the 12-of-22 issue, JFS wins.
{¶ 33} The majority acknowledges this problem but argues that nevertheless we have jurisdiction to hear this case. That‘s not the relevant issue. Even if we have jurisdiction, it has long been understood that courts should not declare “principles
{¶ 34} Here, because the resolution of this appeal doesn‘t affect the parties in the case one whit, our traditional rulе tells us that we have no business deciding it. The majority‘s insistence on doing so in the face of that rule is perplexing. Perplexing not simply because it is at odds with the long-held understanding of the judicial role, but also because it is completely unnecessary. This court has accepted another case that presents the same issue as this one, In re S.M., Supreme Court case No. 2019-1485. In that case the parties actually do have a stake in the outcome—and a decision would amount to more than an advisory opinion.
{¶ 35} Explaining the inherent limitations of the judicial power, Chief Justice Roberts once reminded that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Laboratories Inc. v. United States Drug Enforcement Agency, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment). This case presents the corollary to that principle: if it is not necessary to decide anything, don‘t. Because this court‘s decision cannot affect the case‘s outcome, I would dismiss it as improvidently allowed.
FISCHER, J., concurs in the foregoing opinion.
Vic Vigluicci, Portage County Prosecuting Attorney, and Brandon J. Wheeler, Assistant Prosecuting Attorney, for appellee.
Neil P. Agarwal, for appellant.