In re S Children
Lead Opinion
{¶1} This appeal was originally consolidated with the companion appeals of children N.S. and C.S. and of their guardian *241ad litem ("GAL"). The three appeals arose out of the trial court's order dismissing the permanent-custody complaint of the Hamilton County Department of Job and Family Services ("HCJFS") as to children N.S. and C.S,
{¶2} Concerned that we lacked jurisdiction over HCJFS's appeal, we sua sponte severed HCJFS's appeal, but disposed of the children's and the GAL's appeals, affirming the trial court's judgment in part, reversing in part, and remanding for further proceedings. See In re the S Children , 1st Dist. Hamilton Nos. C-170624 and C-170653,
{¶3} We now hold that the trial court's judgment dismissing HCJFS's complaint, filed under
Jurisdictional Analysis
{¶4} Under Article IV, Section 3(B)(2), Ohio Constitution, "[c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *."
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the judgment and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.
{¶5}
{¶6} HCJFS's role as a public children-services agency . HCJFS is the public children-services agency in Hamilton County. See
{¶7} As part of HCJFS's statutory authority and duty to intervene to protect children, the agency "shall" investigate a report of child abuse or neglect, or a threat of abuse or neglect, reported pursuant to Ohio's child-abuse-reporting law. See
{¶8} Generally, if HCJFS believes that a child is abused, neglected or dependent, and that immediate removal of the child from the child's home is necessary, the agency will notify the court and seek an ex parte emergency order authorizing the taking of the child into custody.
{¶9} The complaint alleging abuse, neglect, or dependency is governed by
any person having knowledge of a child who appears * * * to be an * * * 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 settlement or in which the * * * abuse, neglect or dependency allegedly occurred.
* * *
If the complainant in a case in which a child is alleged to be an abused, neglected, or dependent child desires permanent custody of the child or children, temporary custody of the child or children, whether as the preferred or an alternative disposition, or the placement of the child in a planned permanent living arrangement, the complaint shall contain a prayer specifically requesting permanent custody, temporary custody, or the placement of the child in a planned permanent living arrangement.
{¶10} If the trial court adjudicates a child abused, neglected, or dependent, the court retains jurisdiction over that child until the child reaches the age of 18, with a few exceptions, including the adoption of the child.
{¶11} Here, the trial court granted HCJFS's request for an ex parte emergency order and placed N.S. and C.S. in the interim temporary custody of HCJFS. As *243defined by statute, "temporary custody" means "legal custody of a child who is removed from the child's home" that may be terminated "at any time" by the court or the person who executed an agreement for temporary custody.
{¶12} Actions involving allegedly abused, neglected, or dependent children are special proceedings . Civil actions such as this one brought by a public children-services agency alleging abuse, neglect or dependency of a child and seeking to temporarily or permanently terminate parental rights are special proceedings created by statute, because they were unknown under the common law. In re Adams ,
{¶13} HCJFS has a substantial right affected by the trial court's order dismissing the complaint alleging abuse, neglect and dependency . The other requisite inquiry under
{¶14} Ordinarily, a court order depriving a person of a remedy that the person would otherwise possess deprives that person of a substantial right. Chef Italiano Corp. v. Kent State Univ. ,
{¶15} Here, HCJFS, with the statutory right and duty to intervene to protect N.S. and C.S., filed a complaint under
{¶16} The trial court's judgment also terminated HCJFS's interim custody of those children and returned the children to their parents, an outcome that may result in irreparable harm if the allegations of the complaint are true. Thus, appropriate relief in the future would be foreclosed in the absence of an immediate appeal. The trial court's judgment, therefore, affects a substantial right of HCJFS to fulfill its statutory obligation to these two children.
{¶17} The trial court's judgment is final and appealable under
{¶18} Our holding is consistent with this court's recent decision in In re L.A. ,
{¶19} Unlike in L.A. , where the trial court failed to award custody to anyone, but continued to exercise jurisdiction over the children, the trial court in this case dismissed the complaint, terminated HCJFS's interim custody of the children, and returned custody to the children's parents. Thus, the trial court's order terminating the proceedings with respect to N.S. and C.S. has a greater effect on the substantial rights of HCJFS to intervene to protect children than the order in L.A.
{¶20} Our holding is also consistent with other case law. The Eleventh District Court of Appeals in In re W.W. ,
{¶21} The Eighth District Court of Appeals in In re D.A. , 8th Dist. Cuyahoga No. 95188,
{¶22} Other appellate courts have entertained the state's appeal from a dismissal of an abuse, neglect or dependency complaint without addressing the jurisdictional issue and thus implicitly recognizing that the order affected a substantial right. See , e.g. , In re Z.P. , 5th Dist. Stark No. 2008CA00209,
{¶23} And this court has routinely entertained appeals from the state upon a final disposition returning the children to a parent after a finding of abuse, neglect, or dependency. See, e.g., In re K.T.1 , 1st Dist. Hamilton Nos. C-170667, C-170687, C-170701, C-170702 and C-170707,
{¶24} In re Adams is distinguishable . In this case we hold that HCJFS has a substantial right, created by statute, to seek and obtain protection for N.S. and C.S., and that that right is affected by the trial court's order dismissing the abuse, neglect, and dependency complaint HCJFS filed on behalf of those children as their legal custodian. The Ohio Supreme Court has neither addressed this issue nor foreclosed our determination that a substantial right created by statute exists and is affected.
{¶25} In In re Adams ,
{¶26} The Adams court held that the order denying permanent custody but continuing temporary custody did not qualify as a final, appealable order under either
{¶27} This comparison of a parent's inherent and fundamental right to raise a child to an agency's lack of a reciprocal right was central to the Adams court's *246substantial-right analysis. The court used the comparison to explain its previous holding in In re Murray ,
{¶28} The Adams court noted also that the order in the case before it, which did not finally determine the neglect and dependency action, required no immediate appeal, because "the continuation of temporary custody does not foreclose appropriate relief in the future" for the agency. Id. at ¶ 44. That discussion echoed a prior statement by the court, that "[o]nce the neglect and dependency action is determined, the agency or the parents can appeal the decision," id. at ¶ 40, and the court's conclusion that "[w]hen the trial court enters its final order, all parties whose substantial rights are affected by that order will be able to appeal." Id. at ¶ 46.
{¶29} Importantly, our determination here, that the agency has a substantial right, created by statute, to appeal the dismissal of the complaint where that dismissal permanently ends the existing proceeding with respect to N.S. and C.S., is not inconsistent with the Adams court's holding that an order by the juvenile court denying an agency's motion for permanent custody, but continuing temporary custody with the agency, does not "affect" any substantial right of the agency.
{¶30} Role of the GAL . The dissent acknowledges that the agency does have an interest in ensuring the welfare of the children by way of appeal, but takes the position that this interest is protected by the children's guardian ad litem. We disagree.
{¶31} Certainly the GAL has a vital role in custody proceedings, including permanent-custody proceedings. As the Supreme Court explained in In re C.B.,
{¶32} C.B. involved in part whether a trial court order denying a children-services agency's motion to modify its temporary custody of a child to permanent custody, terminating the placement of temporary custody with the agency, and awarding legal custody to a parent was final and appealable.
{¶33} A children-services agency such as HCJFS has a more direct and extensive role in custody proceedings, including in this case the "right and duty to protect" the children as their legal custodian.
{¶34} Further, the trial court is not required to appoint a GAL in every case where the agency has filed a complaint for abuse, neglect, or dependency. See R.C.
{¶35}
{¶36} Assignments of error . We turn now to HCJFS's two assignments of error. Based on our decision in S Children I, we sustain the assignments of error to the extent that HCJFS argues that the trial court erred in failing to apply
Conclusion
{¶37} The trial court's partial judgment dismissing N.S. and C.S. from HCJFS's complaint is final and appealable as to HCJFS under
Judgment accordingly.
Myers, J., concurs.
Miller, J., dissents.
Notes
The trial court deemed A.S., the deceased sibling of N.S. and C.S., dismissed from the complaint due to his death, which was allegedly a homicide. HCJFS failed to present an assignment of error challenging the trial court's dismissal of A.S. due to his death or any argument challenging the court's dismissal on that basis. Accordingly, we do not address on appeal the trial court's dismissal of A.S. from the complaint.
Dissenting Opinion
*248{¶38} I respectfully dissent from the majority's opinion. While I understand the desire to permit an agency to appeal a permanent-custody decision, In re Adams ,
{¶39} In Adams , the Ohio Supreme Court addressed whether it had jurisdiction to review a children-services agency's appeal of a judgment denying the agency's motion to modify temporary custody to permanent custody, and continuing temporary custody. The court held that the judgment did not qualify as a final, appealable order under either
{¶40} The majority relies, mistakenly in my view, on the statement in Adams that "[o]nce the neglect and dependency action is determined, the agency or the parents can appeal." Id. at ¶ 40. This statement pertains only to whether the decision "determines the action." It is not relevant to the Supreme Court's conclusion that the agency had no substantial right affected. The court went out of its way to say that only parties whose substantial rights are affected by the trial court's final judgment may appeal. Id. at ¶ 46.
{¶41} For us to hold that the trial court's order is "final" under
{¶42} The majority also relies on In re L.A. ,
{¶43} The GAL's role . Finally, HCJFS makes a policy argument, and a compelling one at that. It contends that "[u]nless unequivocally mandated to do so, this court should not diminish a voice for child welfare and safety by denying * * * HCJFS an avenue for legal redress." Based on Adams , we are "unequivocally mandated" to dismiss this appeal for lack of a final, appealable order.
{¶44} However, the state's interest in ensuring the welfare of children by way of appeal is protected via the GAL. By statute, the trial court must appoint a GAL for any child who is the subject of a permanent-custody proceeding. See
{¶45} The state's interests in ensuring the welfare of a child through the right to appeal an adverse decision is vested in an agent who plays a "unique role" with respect to protecting the best interests of that child. Indeed, in the companion appeals in this case, we decided the GAL's and the children's appeals on their merits.
{¶46} Adams and C.B. appear to strike a balance that the state's right to appeal a permanent-custody decision-the family law equivalent of the death penalty-belongs to the party charged with, above other matters, protecting the best interests of the child. Perhaps this is to insulate the decision to appeal from the agency or attorneys who lost in the trial court and to allow cooler heads to prevail.
{¶47} HCJFS did not have a substantial right affected by the trial court's judgment dismissing its complaint for permanent custody of N.S. and C.S. Therefore, there is no final order as to HCJFS under