IN RE: S.R.
C.A. No. 27209
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 25, 2014
2014-Ohio-2749
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. DN 12-03-146
CARR, Judge.
{¶1} Appellant, Rodney R. (“Father“), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated his parental rights and placed his minor child in the permanent custody of Summit County Children Services Board (“CSB“). Because Father was denied his right to be included on the case plan and receive reasonable reunification efforts from the agency, this Court reverses and remands.
I.
{¶2} Father is the natural father of S.R., who was born January 23, 2004 in California. According to the record, Father is the only man who has ever been alleged to be S.R.‘s father. Although Father‘s paternity has not been established through genetic testing, hе was listed as the father on S.R.‘s California birth certificate and was determined to be her father for child support purposes by a 2008 California court order. Father has continued to reside in California throughout this case. Although he spoke to the intake and ongoing caseworkers on the telephone
{¶3} Although the mother and S.R. also resided in California for an unknown period of time, they later moved to Summit County. On March 4, 2012, S.R. was removed from her mother‘s home pursuant to
{¶4} At the shelter care hearing, held the day after the complaint was filed, the intake caseworker informed the magistrate that she had just spoken with the mother and confirmed that, although CSB had the correct street address for Father, his actual city of residence was Vallejo, California, not Sacramentо. The complaint was then successfully served on Father at the Vallejo address, where he has continued to reside and/or receive mail throughout these proceedings.
{¶5} The adjudicatory hearing was held before a magistrate on May 2, 2012. The mother appeared at the hearing, did not allege that there were any defects in the complaint or the proceedings, and stipulated to an adjudication of dependency. Father did not appear at the hearing. That same day, CSB filed a case plan that included reunification goals for the mother but not for Father. In fact, the case plan included no reference to Father or anyone else alleged to be the father of S.R. No explanation is offered on the case plan or anywhere else in the record for the failure of CSB to include Father in the case plan or the case planning process.
{¶6} The dispositional hearing was held before a magistrate approximately three weeks later. Again, the mother appeared but Father did not. The mother‘s counsel informed the
{¶7} The ongoing caseworker, who had apparently just been assigned to S.R.‘s case, testified that there were no objectives for Father (“none at all“) on the case plan. She further testified that, if Father were to come forward, CSB would amend the case plan to include him. Apparently not fully informed about the facts of the case, she further testified that she had not heard from Fathеr and that she had been unable to “get a good address” on him because the mother had not given her “any information” about his whereabouts.
{¶8} At oral argument, counsel for CSB conceded that the ongoing caseworker misled the magistrate about CSB‘s ability to locate Father. In fact, the record reflected at that time that service of the complaint had been perfected upon Father at the California address that the mother had provided to the intake caseworker at the shelter care hearing. Moreover, the record would later reflect, through the ongoing caseworker‘s testimоny at the permanent custody hearing, that Father contacted the intake caseworker via telephone within days of receiving the complaint, he had continual telephone conversations with the intake and ongoing caseworkers during the pendency of this case, and he expressed his desire to have S.R. live with him.
{¶9} At the end of the dispositional hearing, the magistrate stated that he would place S.R. in the temporary custody of CSB and adopt the case plan “based upon mother‘s agreement and the testimony presented.” The magistrate‘s journalized decisions to adjudicate S.R. a depеndent child, place her in the temporary custody of CSB, and to approve the case plan were later adopted by the trial court and were not challenged through timely written objections.
{¶10} On July 5, 2013, CSB moved for permanent custody of S.R. The allegations included that, “[a]fter reasonable case planning and diligent efforts by [CSB], the parents have continuously and repeatedly failed to substantially remedy the conditions that caused placement [outside the home.]” It also alleged that S.R. had been in the temporary custody of CSB for at least 12 of the prior 22 months and that permanent custody was in her best interests.
{¶11} The permanent custody hearing was held before the juvenile judge on November 6, 2013. The mother again appeared and Father did not. At the hearing, CSB presented no evidence about the case plan, nor did any of the parties raise the issue that Father had not been included in the case plan or the agency‘s reunification efforts. Following the brief hearing, the trial court found that the mother of S.R. had voluntarily relinquished her parental rights. It involuntarily terminated Father‘s parental rights after finding that S.R. had been in the temporary custody of CSB for more than 12 of the prior 22 months and that permanent custody was in her best interest. In its journal entry, the trial court found that permanent custody, rather than an extension of temporary custody, was in S.R.‘s best interest because Father had made no progress on the case plan.
{¶12} Father did not appear or participate in any of the proceedings in the trial court and was not represented by counsel. After the final judgment, however, the trial court appointed counsel to represent Father on appeal. Through counsel, Father appealed and raised two assignments of error.
{¶13} Although Father filed a motion for delayed appeal, this Court did not grant his delayed appeal, based on the position of the majority of judges in this Court that ”
{¶14} Oral argument was held on the parties’ original briefs. After this Court‘s post-argument review of the record, however, it requested that the parties brief an additional issue. Consequently, this Court‘s review will include Father‘s original two assignments of error as well as his third assignment of error that was raised through supplemental briefing.
I.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT FAILED TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION.
{¶15} Through his first assignment of error, Father argues that the trial court committed plain error by failing to sua sponte dismiss the complaint. He argues that there were obvious defects in the complaint document itself, insofar as it did not include the name of the child, was signed by a non-attorney, and attached an affidavit that was not properly signed or incorporated by reference. Although Father claims to be challenging the subject matter jurisdiction of the trial court, which can be raised at any time, the substance of this assigned error does not pertain to subject matter jurisdiction. The Summit County Juvenile Court had subject matter jurisdiction over this case because CSB filed a complaint that alleged that S.R. was a neglected and
{¶16} Father likewise fails to raise an issue of personal jurisdiction because he does not dispute that he was properly served with the complaint at the address in Vallejo, California, where he continues tо reside. Instead, he confines his challenges in this assignment of error to alleged defects in the complaint document itself, which he failed to preserve by raising them in a timely manner.
{¶17} “Once a tribunal has jurisdiction over both the subject matter of an action and the parties to it, ‘* * * the right to hear and determine is perfect[.]‘” (Citations and internal quotations omitted). Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 12. Any alleged errors pertaining to the manner in which the court proceeds within that case will render the judgment voidable but not void and, therefore, must be raised in a timely manner. Id. (Emphasizing that only a lack of subject matter jurisdiction renders a judgment void; “lack of jurisdiction over the particular case merely renders the judgment voidable.“). Moreover,
{¶18} Despite receiving service of the complaint, Father and Mother failed to timely assert that there were any defects in that document. “Under this procedural framework, appellant had the opportunity to file an answer, to file motions to dismiss based upon the insufficiency of the complaint *** or to request other relief.” In re Hunt, 46 Ohio St.2d 378, 381 (1976). Although Father lived in California, he could have raised a timely challenge by mailing a written motion. He did not participate in any of the trial court proceedings in person or through court
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED THE PARENTAL RIGHTS OF THE FATHER ALTHOUGH FATHER WAS NEVER PROPERLY SERVED A COPY OF THE PERMANENT CUSTODY MOTION AND SUMMONS.
{¶19} Through his secоnd assignment of error, Father argues that the motion for permanent custody was not properly served on him and, for that reason, the permanent custody decision must be reversed.
Service of summons, notices, and subpoenas, prescribed by section 2151.28 of the Revised Code, 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. If the person to be served is without the state but the person can be found or the person‘s address is known, or the person‘s whereabouts or address can with reasonable diligence be ascertained, service of the summons may be made by delivering a copy to the person personally or mailing a copy to the person by registered or certified mail. (Emphasis added.)
{¶20} Apparently focusing on the first two sentences of this provision, CSB sought and obtained leave of the trial сourt to serve the complaint on Father in California via certified mail because “it would be impracticable to serve him by personal or residencial service.” When it
{¶21} Father asserts that, although the permanent custody motion was served on him via certified mail at his correct address, because CSB did not first obtain leave of court to serve him via certified mail, service failed to satisfy the requirements of
{¶22} When read within the context of the entire paragraph, it is apparent that the first two sentences of
{¶23} Father does not dispute that he resided in California, that CSB knew his correct address, or that he was in fact served with the permanent custody motion and summons. The record reflects that service was accomplished at that California address, which Father has continued to identify as his addrеss in this appeal.
{¶24} Father also argues that, even if he received proper service of the permanent custody motion and summons, the records fails to reflect that he received a proper summons because the summons is not properly endorsed by the clerk. See
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED THE PARENTAL RIGHTS OF THE FATHER EVEN THOUGH NEITHER HE NOR ANY MEMBERS OF HIS EXTENDED FAMILY WERE EVER GIVEN AN OPPORTUNITY TO REUNITE WITH THE CHILD.
{¶25} Father‘s final assignment of error is that the trial court committed plain error by terminating his parental rights in violation of his constitutional and statutory rights as the biological father of S.R. because he was not included on the child‘s case plan and CSB made no effort to reunify S.R. with him or any adult member of his family.
{¶26} Although this Court has not determined whether the civil or criminal plain error standard applies in cases involving the termination of parental rights, see In re D.S., 9th Dist. Summit No. 24619, 2009-Ohio-3167, ¶ 10, under even the civil standard, Father has demonstrated plain error in this case. The civil plain error standard may be applied only in “the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. We must agree with Father that, despite his failure to raise a timely objection to his exclusion from the case plan, that error in this case involves the type of exceptional circumstances that require this Court to recognize plain error.
{¶27} Specifically, Father was the only man who was alleged to be S.R.‘s father and CSB knew his identity and his approximate location at the time it filed the dependency and neglect complaint. The day after it filed the complaint, the intake caseworker learned that, although CSB had listed Father‘s correct name and street address on the complaint, he actually resided in a different city. Father‘s address was corrected on the record and he was successfully served with the complaint and all future filings at that same address.
{¶28} Moreover, according to the brief testimony of the ongoing caseworker at the permanent custody hearing, Father contacted the intake caseworker a few days after he received the complaint. He informed her that, although his paternity had not been established through DNA testing, he was named on S.R.‘s California birth certificate as her father. The caseworker testified about numerous phone conversations with Father over the next several months, during which Father admitted that he was S.R.‘s father and expressed an interest in reunification. Nevertheless, the caseworkers continued to inform Fаther that he was required to submit to genetic testing to establish paternity.
{¶29} Although Father agreed at one point to submit to genetic paternity testing, he later told the caseworker that he could not afford the test. He again insisted that he did not believe that the testing was necessary because the agency had the child‘s birth certificate, on which he had admitted his paternity. CSB and Father went back and forth disagreeing about the need for Father to submit to DNA testing for a period of at least 16 months. During that lengthy period, Father was never included on S.R.‘s case plan and CSB offered no reunification services to him or any membеrs of his family.
{¶30} The caseworker admitted that CSB had a copy of S.R.‘s birth certificate, which identified Father as S.R.‘s father. Shortly before the permanent custody hearing, the trial court found that Father‘s paternity had been established by a 2008 California court order.
{¶31} It is unclear from the record why CSB did not accept S.R.‘s California birth certificate for purposes of establishing paternity.
{¶32} Moreover, Father‘s paternity was also established by a California court order in 2008. Although the trial court ultimately accepted the California court order as a determination of Father‘s paternity, it is unclear why CSB did not obtain and approach the trial court with the California сourt order until shortly before the permanent custody hearing.
{¶33} Regardless of the reasons behind CSB‘s failure to recognize Father‘s established paternity, it is clear from the record that the agency deprived Father of his constitutional and statutory rights to attempt to be reunified with his child. Throughout the pendency of this case, during which CSB apparently believed that the “12 of 22” clock was ticking against both parents, it did absolutely nothing to involve S.R.‘s biological father or members of his extended family in the case planning process, but instead set up unnecessary obstacles to the paternal family‘s participation in any rеunification efforts.
{¶34} Appellate counsel for CSB conceded that CSB‘s failure to include Father on the case plan prior to moving to terminate his parental rights constituted plain error under the facts of this case. We must emphasize that it is the egregious nature of these facts that compels us to recognize plain error in this case. From the beginning of this case, CSB knew Father‘s identity and location and that he was interested in reunification with his daughter, yet it completely ignored its statutory obligation to attempt to reunify S.R. with her biological family. Because this Court must limit its review to the facts of this case, we do not reach the issue of whether CSB also would have been obligated to include an alleged father in the case plan if his paternity had not been established.
{¶35} This Court must once again stress that the authority of the juvenile court and the county children services agency in abuse, dependency, and neglect cases is strictly governed by a comprehensive statutory scheme set forth in
{¶36} This Court‘s interpretation of all relevant statutes and regulations must be guided by the fundamental notion that both рarents, including an unmarried and non-custodial father, have a basic civil right to the care and custody of their child. See Stanley v. Illinois, 405 U.S. 645, 651 (1972). “‘[T]he custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.‘” Id., quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944). “Permanent termination of parental rights has been described as ‘the family law equivalent of the death penalty in a criminal case.’ Therefore, parents ‘must be afforded every procedural and substantive protection the law allows.‘” In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).
{¶37} Among the procedural protections of the parties is the obligation of the agency to make reasonable efforts to reunify the child with one or both parents. See
{¶38} Effective March 18, 1999, H.B. 484 made extensive revisions to
{¶39}
{¶40} Absent a judicial finding that one of the circumstances enumerated in
{¶41} In addition to its obligation to make reasonable reunification efforts, CSB was required to file a case plan in this case because it filed a complaint to allege that S.R. was a neglected and dependent child.
{¶42} Pursuant to
{¶43} The final page of Job and Family Services Form 10410 requires that each party, including each parent, sign the case plan. If they do not sign, the form requires an explanation about why the party did not sign in agreement or participate in the planning process. Specific examples are included on the form: “Unable to Locate/Unavailable,” “Disagreed with Plan” and “Other.” An open box is provided for a more detailed explanation “[i]f any party did not sign the case plan or disagreed with the case plan[.]”
{¶44} Father‘s name is not included on any of the case plans in this case, and no written explanation is given for his failure to sign in agreement or participate in the planning process. There is likewise nothing on the final case plan about the agency‘s efforts to contact and include
{¶45} The agency‘s unexplained exclusion of Father and his extended family from all reunification and/or case planning efforts in this case completely undermined the integrity and legitimacy of these trial court proceedings and violated the statutory and constitutional rights of both Father and S.R. “[T]he overriding purpose of the case plan is for the agency to help the family remedy its problems and return the child to her ‘home’ or, if that is not possible, to find a suitable caregiver who is рart of her extended family.” In re A.P., 9th Dist. Medina No. 12CA0022-M, 2012-Ohio-3873, ¶ 27, citing
{¶46} The trial court ultimately terminated Father‘s parental rights under the so-called “12 of 22” provision of
{¶47} The trial court had no authority to make a “12 of 22” finding under the facts of this case because Father was not provided with any reasonable reunification efforts.
{¶48} Moreover, in In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, the Ohio Supreme Court followed some of this Court‘s reasoning in In re K.G., including that a children services agency lacks authority to move for permanent custody on the “12 of 22” ground until the child has been in agency custody for at least a full 12 months. Id. at syllabus. The court‘s reasoning behind that holding was that “in light of the purpose of R.C. Chapter 2151 and a court‘s obligation to provide parents with procedural protections in permanent custody proceedings, an agency must afford parents the full 12-month period to work toward reunification before moving for permanent custody” because “[t]he statute clearly provides parents with 12 months to demonstrate their ability and fitness to care for their child before an agency can move for permanent custody on
{¶49} Because Father was not included on the case plan and was afforded no services whatsoever in attempting to be reunified with S.R., the trial court committed plain error in terminating his parental rights under the “12 of 22” provision of
III.
{¶50} Father‘s first two assignments of error are overruled. His third assignment of error is sustained. The judgment of the Summit County Court of Common Pleas, Juvenile
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
GALLAGHER, J. CONCURS.
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.
(Gallagher, J., of the Eighth District Court of Appeals, sitting by assignment.)
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
TONY PAXTON, Attorney at Law, for Appellee.
LINDA BENNETT, Guardian ad Litem.