THE STATE EX REL. ALLEN COUNTY CHILDREN SERVICES BOARD v. MERCER COUNTY COURT OF COMMON PLEAS, PROBATE DIVISION, ET AL.
No. 2016-0723
Supreme Court of Ohio
Submitted August 31, 2016—Decided October 20, 2016
2016-Ohio-7382
O‘DONNELL, J.
{¶ 1} The issue in this case is whether a probate court may exercise its exclusive jurisdiction over adoption proceedings while a juvenile court is concurrently exercising continuing jurisdiction over a child custody proceeding.
{¶ 2} The Allen County Children Services Board (“Board“) commenced this action seeking a writ of prohibition barring the Probate Division of the Mercer County Common Pleas Court (“Probate Court“) and Judges Mary Pat Zitter and James Rapp from exercising jurisdiction over M.S., a minor child.1 At that time, the child was in the temporary custody of the Board by order of the Juvenile Division of the Allen County Common Pleas Court (“Juvenile Court“). The Probate Court and the Juvenile Court both assert jurisdiction over the child‘s residential placement.
{¶ 3} On June 1, 2016, this court granted a peremptory writ of prohibition precluding the Probate Court from “exercising jurisdiction in the case captioned In the Matter of the Placement and Adoption of M.A.S.A., Mercer County Common Pleas Court, Probate Division, case No. 2016 5005, consistent with the opinion to follow.” 146 Ohio St.3d 1404, 2016-Ohio-3255, 50 N.E.3d 571. Before this court issued an opinion, the Probate Court and Judges Zitter and Rapp moved for reconsideration.
Facts and Procedural History
{¶ 5} M.S. was born on July 24, 2014, and she tested positive for cocaine at or about the time of her birth. On August 7, 2014, the Board removed the child from her mother pursuant to an ex parte emergency custody order and placed her in the foster care of Brian and Kelly Anderson.
{¶ 6} At a hearing on August 8, 2014, the Juvenile Court found probable cause to believe that M.S. was subject to immediate harm from abuse or neglect and placed her in the shelter care of the Board. After the Board filed a dependency complaint on M.S.‘s behalf, the Juvenile Court declared her to be dependent and abused and subsequently ordered the child placed in the temporary custody of the Board.
{¶ 7} On November 13, 2015, the Andersons moved to intervene in the Juvenile Court case and sought legal custody of M.S. That same day, M.S.‘s mother filed a document agreeing to the Andersons’ intervention and objecting to any plan that would place M.S. in the care or custody of the mother‘s sister, who resides in Indiana and has custody of M.S.‘s half-brother by order of a West Virginia court. The Board on January 4, 2016, moved to modify the temporary-custody order and place M.S. in the legal custody of M.S.‘s aunt and to terminate “all Court-ordered services” by the Board. In response, M.S.‘s mother asked the court to designate the Andersons as legal custodians.
{¶ 8} On or about March 16, 2016, the Board removed M.S. from the Andersons’ home and placed her with her aunt.
{¶ 9} On March 28, 2016, M.S.‘s mother filed an application in the Probate Court, asking the court to place M.S. “for the purpose of adoption” with the Andersons. The Andersons petitioned the Probate Court to adopt M.S. on March 31, 2016, submitting an application for placement for the purpose of adoption signed by M.S.‘s mother, who appeared before the Probate Court and executed her consent to the adoption. The Probate Court approved the application for placement that same day and ordered the Board to release M.S. to the custody of the Andersons’ attorney.
{¶ 11} Based on the Juvenile Court‘s order, the Board did not release the child and instead moved to stay proceedings in the Probate Court. The Andersons then sought to have the Board held in contempt of court for its failure to surrender custody of M.S. as ordered.
{¶ 12} Meanwhile, on April 26, 2016, the Juvenile Court denied the Andersons’ renewed motion to intervene. In its order, the court quoted In re Adoption of Asente, 90 Ohio St.3d 91, 92, 734 N.E.2d 1224 (2000), for “the bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter.” It then observed that the Juvenile Court exercised jurisdiction over the child first, that it was exercising its continuing jurisdiction under
{¶ 13} On April 27, 2016, the Probate Court ruled that it had jurisdiction to proceed with the adoption, denied the Board‘s motion for stay, scheduled a hearing on the motion for contempt, and set the adoption petition for final hearing.
{¶ 14} The Board filed this complaint for a writ of prohibition against the Probate Court and Judges Zitter and Rapp on May 10, 2016. This court granted a peremptory writ of prohibition on June 1, 2016, with an opinion to follow announcement of the decision. 146 Ohio St.3d 1404, 2016-Ohio-3255, 50 N.E.3d 571.
{¶ 15} It is not clear what actions, if any, the Juvenile Court has taken since release of our decision in this case. Pursuant to
{¶ 17} The Board responds that this court‘s writ did not affect the mother‘s right to consent to an adoption but rather reflected that the Juvenile Court had authority to divest her of the right to decide where M.S. will live once it found that M.S. was an abused, neglected, or dependent child. The Board asserts that the mother has not been deprived of due process, because the Revised Code precludes the Probate Court from adjudicating an adoption petition only while M.S. is subject to the Juvenile Court‘s temporary-custody order. The Board notes that it is not necessary for M.S. to be adopted in order to provide her a permanent and stable home, because a grant of legal custody to her biological aunt may be in the child‘s best interest. And it asserts that this court should not permit “a biological parent who has failed to adequately care for his/her children and who does not like the decisions of the public children services agency and the juvenile court to collude with others to adopt the very same children who the parents have abused, neglected, or caused to be dependent.”
{¶ 18} Accordingly, we are called upon to reconcile the conflicting claims of jurisdiction asserted by the Juvenile Court and the Probate Court.
Law and Analysis
{¶ 19} To be entitled to a writ of prohibition, the Board must establish the exercise of judicial power, that the exercise of that power is unauthorized by law, and that denying the writ would result in injury for which no adequate remedy exists in the ordinary course of law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. Even if an adequate remedy exists, a writ may be appropriate when the lack of jurisdiction is patent and unambiguous. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 9.
{¶ 20} The Board contends that the Probate Court‘s exercise of jurisdiction is unauthorized by law because the Juvenile Court has original, exclusive jurisdiction over M.S.
{¶ 22} The juvenile court “shall retain jurisdiction over any child for whom the court issues an order of disposition” pursuant to
{¶ 23} Thus, a juvenile court‘s exclusive jurisdiction terminates upon the issuance of a dispositional order pursuant to
{¶ 24} In contrast to the juvenile court‘s continuing jurisdiction over an abused, neglected, or dependent child, “the original and exclusive jurisdiction over adoption proceedings is vested in the probate court,” In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9, and the adoption statutes
{¶ 25} A prerequisite to adoption is the placement of the child with the prospective adoptive parents. See
{¶ 26} However,
{¶ 27} After 30 days following the date on which the child was placed in the home of the petitioner, the probate court must conduct a hearing.
{¶ 28} We have recognized that a parent need not have physical custody of the child to utilize the procedure for private adoptive placement in
{¶ 29} Rather, the parent‘s right to consent to an adoption of a child subject to the juvenile court‘s continuing jurisdiction depends on the dispositional order that the court entered and whether it grants temporary or permanent legal custody.
{¶ 31} “Legal custody” is “a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities.” (Emphasis added.)
{¶ 32} “Permanent custody” is different from legal custody. It means “a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations.” (Emphasis added.)
{¶ 33} As we recognized in In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, “[t]he important distinction is that an award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities.” (Emphasis added.) Id. at ¶ 17. Legal custody is “subject to” residual parental rights,
{¶ 34} Importantly, nothing in the statutes expressly precludes the probate court from exercising its jurisdiction in adoption proceedings regarding a child who is the subject of custody proceedings in the juvenile court. Rather, because
{¶ 36} Accordingly, the authority of the probate court to order preadoption placement pursuant to
{¶ 37} This view is consistent with our decision in Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, which held that “[w]hen an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child,” id. at the syllabus. Notably, we did not hold that the probate court lacked jurisdiction—Pushcar was not a prohibition action, and we did not question the appellate court‘s recognition that “the probate court did have jurisdiction to consider the petition for adoption,” id. at ¶ 7. Rather, the point in Pushcar was that pursuant to the adoption statutes, the probate court could not proceed with the adoption without the consent of the putative father, and only the juvenile court could decide the question of the child‘s paternity. See generally
{¶ 38} Notably, we have since clarified in In re G.T.B., 128 Ohio St.3d 502, 2011-Ohio-1789, 947 N.E.2d 166, ¶ 10 and fn. 2, that Pushcar required the probate court to refrain from proceeding while there was a question of parentage—i.e., paternity—pending in the juvenile court.
{¶ 39} Nor is our holding that the Probate Court has jurisdiction to proceed in this matter inconsistent with this court‘s decision in Asente, 90 Ohio St.3d 91, 734 N.E.2d 1224. There, we stated that it was a “bedrock proposition that once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter.” Id. at 92. However, Asente concerned an interstate custody dispute and the application of the former Uniform Child Custody Jurisdiction Act and the
{¶ 40} Here, the Juvenile Court exercised exclusive jurisdiction over M.S. when it adjudicated her a dependent and abused child and when it issued a dispositional order awarding temporary custody of M.S. to the Board. Thereafter, the Juvenile Court retained continuing jurisdiction, which will terminate when M.S. reaches the age of 18 or 21 or when she is adopted, see
{¶ 41} Accordingly, we recognize that the Probate Court has jurisdiction to consider the adoption of M.S., and we therefore rescind the peremptory writ of prohibition issued on June 1, 2016, and deny the requested writ.
Motion for reconsideration granted and writ denied.
PFEIFER, LANZINGER, and FRENCH, JJ., concur.
O‘CONNOR, C.J., dissents, with an opinion joined by O‘NEILL, J.
O‘NEILL, J., dissents, with an opinion joined by O‘CONNOR, C.J.
KENNEDY, J., not participating.
O‘CONNOR, C.J., dissenting.
{¶ 42} To achieve the result it desires in this case, the new majority reframes the question in such a way that it can be answered only in the affirmative: “The issue in this case is whether a probate court may exercise its exclusive jurisdiction over adoption proceedings while a juvenile court is concurrently exercising continuing jurisdiction over a child custody proceeding.” (Emphasis sic.) Majority opinion at ¶ 1.
{¶ 43} The actual question before us, however, is whether a probate court may exercise its exclusive jurisdiction over adoption proceedings while a juvenile court is exercising its exclusive jurisdiction over a child-custody proceeding. The
{¶ 44} As set forth in our rules, “A motion for reconsideration shall not constitute a reargument of the case * * *” S.Ct.Prac.R. 18.02(B). But respondents, the Probate Division of the Mercer County Court of Common Pleas (“Probate Court“) and its judges Mary Pat Zitter and James Rapp, have offered no new fact or legal argument that we failed to consider initially and, accordingly, their motion for reconsideration should be denied. See, e.g., State ex rel. Shemo v. Mayfield Hts., 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493, ¶ 9; Toledo Edison Co. v. Bryan, 91 Ohio St.3d 1233, 1234, 742 N.E.2d 655 (2001) (Pfeifer, J., concurring).
{¶ 45} Without a word of explanation of how the onerous standard for granting a motion for reconsideration is met here, a majority of this court abandons this court‘s prior ruling, grants the motion to reconsider, and rescinds our previous writ of prohibition against respondents so that the Probate Court may proceed with the adoption of the minor child, M.S., by nonparties Brian and Kelly Anderson.
{¶ 46} It is one thing to ignore the standard for reconsideration. It is far more dangerous and disheartening, however, for the majority to ignore the realities of adjudicating cases of child abuse or neglect in Ohio‘s juvenile courts. Yet in its rush to permit the Andersons’ adoption of M.S., the majority presents an unprecedented holding under the guise of statutory analysis. That analysis supports the majority‘s bottom line but casts aside every practitioner‘s understanding of Ohio‘s previously well-functioning juvenile court system, which must both protect dependent, neglected, and abused children and respect the fundamental constitutional rights of their parents.
{¶ 47} At best, the majority fails to understand the significant differences between the early stages of a child-abuse, neglect, or dependency action and the latter stages of such an action. The focus in the initial stages is on ascertaining whether the child has been imperiled and, if so, what orders must be entered immediately to protect the child. During the latter stages of the proceedings, the court must determine whether a parent‘s misconduct contributed to the child‘s peril and warrants the termination of the parent‘s rights to continued custody and care of the child. See In re Bishop, 36 Ohio App.3d 123, 124, 521 N.E.2d 838 (5th Dist.1987) (noting that the focus of a dependency charge is on the child and the child‘s conditions, and not on the child‘s parents’ faults); Giannelli and Salvador, Ohio Juvenile Law, Section 43:2, at 578 (2015 Ed.).
{¶ 48} Before proceeding with an explanation of the failings of the majority‘s statutory analysis and its sophistry with notions of juvenile and probate courts’ respective jurisdictions, I pause to address important factual points that are not
THE ANDERSONS’ MISREPRESENTATIONS
{¶ 49} On March 31, 2016, the Andersons filed a petition for the adoption of M.S., in the Mercer County Probate Court. They intentionally deceived, twice, in that application.3
{¶ 50} First, they asserted that M.S. “is living” in their home. In truth, M.S. was not living in the Andersons’ home on that date; the Allen County Children Services Board (“the Agency“) had removed M.S. from their home at least two weeks earlier, on or about March 16, 2016, and placed her with her aunt in Indiana.
{¶ 51} Second, the Andersons swore that M.S. had been placed in their home “for adoption” on August 7, 2014, by the Agency. In truth, M.S. had been placed in the Andersons’ home pursuant to an ex parte emergency custody order two weeks after M.S.‘s birth.
{¶ 52} Notably, M.S.‘s emergency placement with the Andersons was precipitated by the fact that M.S. had tested positive for cocaine shortly after her birth. That test result, of course, was due to the child abuse M.S. suffered from her mother‘s use of cocaine during her pregnancy. See In re Baby Boy Blackshear, 90 Ohio St.3d 197, 736 N.E.2d 462 (2000), syllabus (a newborn baby who was exposed while a fetus to an illegal substance like cocaine is per se an abused child). Whether M.S.‘s mother‘s cocaine use was due to an inability to resolve an addiction or an unwillingness to abstain is not clear, but this was not her first experience with the juvenile court system due to concerns over her parenting.4 Her misconduct with M.S. alone was enough to establish that M.S.‘s mother was not a suitable parent, and there is no showing that she is now suitable even though parental suitability is a necessary prerequisite to custody. In re Perales,
{¶ 53} In any event, there is not a scintilla of evidence in the record suggesting, yet alone establishing, that M.S. was placed with the Andersons with an eye toward adoption. Nor should there be.
{¶ 54} Significantly, at the time the Agency placed M.S. with the Andersons, it had an obligation to protect the child but work toward her reunification with her mother. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28-33. And the Andersons, as foster parents, also were obliged to strive for reunification of mother and child. See In re R.W., 2015-Ohio-1031, 30 N.E.3d 254, ¶ 17 (8th Dist.) (noting that foster parents act as agents of the state). Instead, as the Juvenile Division of the Allen County Court of Common Pleas (“Juvenile Court“) found, the Andersons began “acting as independent free agents and well outside their role as caregivers,” by contemplating adoption of the child despite the Agency‘s goal of placing M.S. in the legal custody of her aunt—a placement consistent with Ohio‘s public policy favoring placement with a relative or family member over placement in foster care,5
{¶ 55} Notwithstanding M.S.‘s mother‘s parental unsuitability and per se abuse of M.S. or the fact that she retains only residual parental rights that do not permit her to control M.S.‘s adoption, the majority nevertheless finds that her consent to the Andersons’ adoption of M.S. is sufficient to destroy the Juvenile Court‘s exclusive jurisdiction and to permit the Probate Court to proceed with the Andersons’ adoption petition, even if it contains lies or, at best, self-defeating statements.6
{¶ 56} The tragedy wrought by the majority‘s holding may or may not befall M.S. But it will certainly befall many of the neglected or abused children whom the law entrusts to our juvenile courts, the attorneys and guardians who
ANALYSIS
The proper understanding of a juvenile court‘s exclusive jurisdiction
{¶ 57} The majority‘s analysis offends the General Assembly‘s equipoise of two sometimes-competing fundamental rights: a parent‘s right to the custody and care of her or his child and a child‘s right to be free from abuse and neglect.
{¶ 58} The rights of a parent may be fundamental, but they are not absolute. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979). The state has broad authority to intervene to protect children from abuse and neglect. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 28, citing
{¶ 59} As we have explained previously,
[u]ltimately, parental interests are subordinate to the child‘s interest when determining the appropriate resolution of a petition to terminate parental rights. [Cunningham at 106.] [The child‘s] private interest, at least initially, mirrors his mother‘s, i.e., he has a substantial interest in preserving the natural family unit. But when remaining in the natural family unit would be harmful to him, [the child‘s] interest changes. His private interest then becomes a permanent placement in a stable, secure, and nurturing home without undue delay. See In re Adoption of Zschach, 75 Ohio St.3d 648, 651, 665 N.E.2d 1070 (1996). “There is little that can be as detrimental to a child‘s sound development as uncertainty over whether he is to remain in his current ‘home,’ under the care of his parents or foster parents, especially when such uncertainty is prolonged.” Lehman v. Lycoming Cty. Children‘s Servs. Agency, 458 U.S. 502, 513-514, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982).
In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 20.
{¶ 60} Because “[p]ermanent termination of parental rights has been described as the ‘family law equivalent of the death penalty in a criminal case,‘” parents
{¶ 61} The process begins with the filing of the dependency complaint, which triggers the exclusive original jurisdiction of the juvenile court to adjudicate cases involving any child alleged to be abused, neglected, or dependent.7 In re Z.R. at ¶ 16; State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 18, citing
{¶ 62} Within 30 days of the filing of the complaint, the juvenile court must conduct an adjudicatory hearing to determine whether the child is abused, neglected, or dependent and whether the child should remain in (or be placed in) shelter care.
{¶ 63} The court then has seven days in which to issue a judgment that includes one of six temporary or interim disposition orders, see
{¶ 64}
{¶ 65} Both conclusions are incorrect. In either scenario, the majority deprives the juvenile court of its exclusive jurisdiction to do the critical work the General Assembly charged to it—ensuring the safe care of the child—before that critical work is complete. The General Assembly plainly did not intend this result, because the scheme it created and placed in the Revised Code considers the final dispositional order in the abuse, neglect, or dependency case to be the judgment ending the juvenile court‘s adjudicatory process.
{¶ 66} A temporary-custody order is an interim disposition intended to serve only as a temporary, rather than final, disposition. We know this because the statutory language specifies that the temporary-custody order terminates one year after the complaint‘s filing or the child‘s placement in shelter care, whichever is earlier,
{¶ 67} In its rush to permit the Probate Court to assert its exclusive jurisdiction over a case pending in juvenile court, the majority ignores that temporary dispositions in juvenile court are just that: temporary, i.e., “not a determination of the merits of the complaints, but a temporary order pending determination of the merits of the complaint,” In re Spears, 4th Dist. Athens No. 1200, 1984 WL 5682, *4 (Dec. 10, 1984). See also Black‘s Law Dictionary 1131 (8th Ed.2004) (defining “temporary order” as a “court order issued during the pendency of a suit, before the final order or judgment has been entered“). Those interim orders serve as temporal and substantive guideposts along the path of adjudicating parental rights in neglect and abuse cases, not final orders that resolve the rights of the parent and the child.
{¶ 68} The majority seizes on the fact that those guideposts are referred to as “dispositions” to summarily declare, without authority, that “[t]he retained jurisdiction following a dispositional order issued pursuant to
[b]ecause of apparent dissatisfaction with the results of prior legislative efforts and in order to ensure Ohio‘s compliance with federal mandates, the General Assembly enacted Am.Sub.S.B. No. 89, effective January 1, 1989 (142 Ohio Laws, Part I, 198), which provided comprehensive changes in the laws governing neglect, dependency, and abuse proceedings. Kurtz & Giannelli, Ohio Juvenile Law (2 Ed.1989) 21, T 1.04. The overall intent of the legislation was to prevent “foster care drift” by, among other things, establishing maximum time limits under which children may remain in the custody of public and private child care agencies, and increasing the responsibilities of juvenile courts to review and oversee the permanency planning efforts of these agencies. Id. at 22; see, also, Legislative Service Commission Analysis of Am.Sub.S.B. 89, Baldwin‘s 1988 Laws of Ohio, at 5-5.71.
In re Collier, 85 Ohio App.3d 232, 235, 619 N.E.2d 503 (4th Dist.1993). See also In re Murray, 52 Ohio St.3d 155, 157-158, 556 N.E.2d 1169 (1990) (describing “the sweeping reforms made to the juvenile court system” by Am.Sub.S.B. No. 89, including amendments to
{¶ 69} The majority‘s conclusion that the Juvenile Court judges’ interim dispositional orders end the Juvenile Court‘s exclusive, original jurisdiction is not supported by the legislative history of the 1989 amendments.
{¶ 70} Granted, there is an unfortunate lack of precision in the use of the term “disposition” in the legislative history, in which the term is used to denote both initial and final dispositions. See, e.g., Legislative Service Commission Analysis of Sub.S.B. 89, as reported by H. Children & Youth (1989), at 21 and 37; Legislative Service Commission Analysis of Sub.S.B. 89, as passed by the Senate (1989), at 2 and 11-12. Given that lack of clarity, we should interpret the statute consistently with its purpose and with common sense and hold that the General Assembly intended that a juvenile court‘s final dispositional hearing and subsequent ruling serves as the culminating event that extinguishes a juvenile court‘s exclusive jurisdiction, and not the interim dispositions reflected in the juvenile
{¶ 71} Moreover, the majority ignores the significance of the very specific manner in which the statutory provisions it relies on were drafted, including the General Assembly‘s express mention of
{¶ 72}
{¶ 73} But what, then, is the relevance of
{¶ 74} When construing a statute, we must give effect to all the enacted language. Church of God in N. Ohio, Inc. v. Levin, 124 Ohio St.3d 36, 2009-Ohio-5939, 918 N.E.2d 981, ¶ 30. As we explained in Boley v. Goodyear Tire & Rubber Co., a construction that renders statutory words meaningless and without effect is
{¶ 75} To be sure, the statutory scheme at issue here is labyrinthine. But the complexity of the statutes is not an invitation to import our own judicial philosophies and preferences into the analysis. “’ “A court should not place a tenuous construction on [a] statute to address a problem to which the legislative attention is readily directed and which it can readily resolve if in its judgment it is an appropriate subject of legislation.” ’ ” State v. Gray, 62 Ohio St.3d 514, 518, 584 N.E.2d 710 (1992), quoting People v. Hardy, 188 Mich. App. 305, 310, 469 N.W.2d 50 (1991), quoting People v. Gilbert, 414 Mich. 191, 212-213, 324 N.W.2d 834 (1982).
{¶ 76} Rather, our duty is to construe the statutes according to legislative intent, harmonizing them in a proper and reasonable fashion and giving the provisions their proper force and effect. State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 29 (O‘Connor, C.J., concurring), citing D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20; State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996); and State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph two of the syllabus.
{¶ 77} The General Assembly, having established a specific and mandatory process for both initial decisions about the protection of the child and those finalizing a juvenile court‘s judgment, clearly extended the juvenile court‘s exclusive jurisdiction through to the end of the juvenile court‘s adjudication process.10 At that point, the juvenile court has continuing, but not exclusive, jurisdiction over the child. Neither a probate court nor a litigant in the probate court can deprive a juvenile court of its exclusive jurisdiction before final disposition. State ex rel. Hitchcock v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 97 Ohio App.3d 600, 604, 647 N.E.2d 208 (8th Dist.1994) (“If a court
The proper understanding of a probate court‘s exclusive jurisdiction
{¶ 78} There is no dispute that the probate courts have exclusive original jurisdiction over adoption proceedings. In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9; State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 21; State ex rel. Portage Cty. Welfare Dept. v. Summers, 38 Ohio St.2d 144, 311 N.E.2d 6 (1974), paragraph two of the syllabus.
{¶ 79} The process of adoption begins with the filing of a petition for adoption.
{¶ 80} The majority emphasizes that preadoption placement (that is, placement of the child before the final order of adoption) is governed by
{¶ 81} The majority seizes on this statutory scheme and summarily concludes that it is sufficient to permit the Probate Court to proceed with M.S.‘s adoption. And that might have been the case if M.S.‘s mother had legal custody of M.S., because legal custody includes the right to control how and where a child shall live.
{¶ 82} The right to consent to an adoption is not a right to control placement of the child pending adoption. Rather, it is a legislatively crafted protective measure that ensures that no adoption can be initiated without a biological parent‘s consent as long as a court of competent jurisdiction has not permanently terminated that parent‘s parental rights. For this reason, the consent of a biological parent with residual parental rights is, for a probate court, a jurisdictional prerequisite.
{¶ 83} I would hold, consistent with Palmer, that as long as a temporary-custody order is in effect, the parent of a child who has been declared dependent has no legal authority to direct the child‘s placement, whether by consenting to an adoption, a preadoption placement, or otherwise. Nevertheless, the judicial fiat rendered by the majority today expands the scope of residual parental rights, which evidently now permit a parent to control placement of the child and to divest a juvenile court of its exclusive jurisdiction to adjudicate a complaint that the parent abused or neglected her or his child.
{¶ 84} The majority does not cite a single case that actually supports that result.11 The paucity of authority is not surprising, however, because until today, no such authority existed.
CONCLUSION
{¶ 85} From this day forward, parents who face termination of their parental rights due to their suspected abuse or neglect of their children need not worry. To avoid the intruding eye of the juvenile court judge, the parent alleged to be abusive or neglectful can simply find a trusted ally or private adoption agency, then proceed to probate court, where the adoption can occur without any finality to the allegations of abuse or neglect. And once the adoption is final, nothing can be done to protect the child except, of course, return to juvenile court on a new dependency action. But child-protective services would be no more successful there than the daughters of Danaus for, upon arrival in juvenile court to face the allegations of abuse or neglect, the parent could simply abscond to probate court and again avoid adjudication.
{¶ 86} The majority‘s holding promotes the precise sort of turf war that has occurred in this case, to the detriment of M.S. We should be cognizant that we previously adopted as our own the words of then Judge O‘Neill, albeit in a
The current litigation at this appellate level is not about good parents or bad parents. Further, this court is also not determining custody, an issue to be decided later by a court with competent jurisdiction. Rather, this court has a very solemn role to play, and that is to determine which court * * * has jurisdiction over this matter. As this case demonstrates, the best interest of a child is never served when adults turn to seemingly endless litigation to resolve their disputes. In this case, the parties have staked out a position and have waited for the courts to schedule hearings where it is hoped that the Wisdom of Solomon will come down on the winning side. In the interim, the life of a child and two families are left in turmoil and uncertainty to no one‘s benefit. Litigation of these matters is already difficult when one court in one state is involved in the controversy. It becomes unwieldy when multiple [courts] become embroiled in the dispute and cannot agree on the basic issue of jurisdiction.
In re Adoption of Asente, 90 Ohio St.3d 91, 91-92, 734 N.E.2d 1224 (2000).
{¶ 87} The memories of the justices in the majority are evidently as limited as the majority opinion‘s analysis here.
{¶ 88} I dissent.
O‘NEILL, J., concurs in the foregoing opinion.
O‘NEILL, J., dissenting.
{¶ 89} I join Chief Justice O‘Connor‘s well-written dissent.
{¶ 90} I write separately to clarify what happens next. It is beyond dispute that there are at least two courts that can have exclusive jurisdiction over events that may occur in the fragile life of any child in Ohio. The juvenile court has exclusive jurisdiction over abuse, neglect, or dependency, and the probate court has exclusive jurisdiction should someone file a petition to adopt the child.
{¶ 91} No one disputes that when there is even a suggestion of abuse, neglect, or dependency, the juvenile court has not only the right but the duty to step in. At that point, the juvenile court‘s exclusive jurisdiction—to immediately take charge of the situation and to protect the child from whatever dangers exist—is triggered. That is what happened here. A drug-exposed child was born and a children-services agency, exercising its statutory authority, immediately stepped in to protect the child. At birth. As we said in In re Adoption of Asente, “once a
{¶ 92} At its core, that was the basis of the peremptory writ that we issued on June 1, 2016. We instructed the Mercer County Probate Court to refrain from acting until further notice, not forever. Just stop for now, and let the first court figure out what is happening here. Common sense, case precedents, and the statutory framework clearly support what this court did on an interim basis.
{¶ 93} Nowhere in our entry issuing the writ did we question the jurisdiction, wisdom, or motives of the Mercer County Probate Court. However, it is preposterous to even suggest that the birth mother, having first exposed her newborn to cocaine, would have the temerity on her own to wander across county lines and attempt to consent to her child being put up for adoption. Once the juvenile court and the Allen County Children Services Board (“the Agency“) became aware of the peril this child was in from the actions of this mother, they immediately commenced their statutorily mandated job of finding a safe home for this child.
{¶ 94} I write separately because I believe the majority does not adequately address the following salient facts, which are undisputed:
- The mother is not the custodial parent of this child today.
- The Agency had temporary legal custody of the child at the time we issued the peremptory writ.
- The Agency was not named as a party in the Mercer County Probate Court‘s order for adoptive placement.
- This child is a resident of Allen County, Ohio, living in Indiana. That is a fact that all the pleadings in the world will not change.
{¶ 96} As Chief Justice O‘Connor points out, respondents, the Mercer County Probate Court and its judges, have offered no new fact or legal argument to warrant reconsideration. We got this case right the first time. A motion for reconsideration is not the vehicle by which a party should be permitted to reargue earlier positions. The motion to reconsider should be denied.
{¶ 97} I dissent.
O‘CONNOR, C.J., concurs in the foregoing opinion.
Juergen A. Waldick, Allen County Prosecuting Attorney, and Terri L. Kohlrieser, Assistant Prosecuting Attorney, for relator.
Matthew K. Fox, Mercer County Prosecuting Attorney, and Amy B. Ikerd and Andrew J. Hinders, Assistant Prosecuting Attorneys, for respondents.
David W. Haverfield, urging denial of the motion for reconsideration for amicus curiae, Public Children Services of Ohio.