In re H.C. , 2015 Ohio 3545 ( 2015 )


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  • [Cite as In re H.C., 2015-Ohio-3545.]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    PORTAGE COUNTY, OHIO
    IN RE: H.C.                                       :      OPINION
    :
    CASE NO. 2014-P-0059
    :
    Appeal from the Portage County Court of Common Pleas, Juvenile Division.
    Case No. 2014 JCC 00349.
    Judgment: Affirmed in part, reversed in part, and remanded.
    Denise E. Ferguson, P.O. Box 26004, Akron, OH 44319 (For Appellant Kessleen J.
    Baker).
    Victor V. Vigluicci, Portage County Prosecutor, and Raymond H. Srp, Assistant
    Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee Portage
    County Department of Job and Family Services).
    TIMOTHY P. CANNON, P.J.
    {¶1}     Appellant, Kessleen J. Baker, appeals the judgment of the Portage County
    Court of Common Pleas, Juvenile Division, finding her minor child, H.C., to be
    neglected.      The issues on appeal are whether the juvenile court erred in denying
    appellant’s motion to dismiss; whether the finding of neglect was against the manifest
    weight of the evidence; and whether the juvenile court complied with R.C. 2151.419 in
    support of its determination that reasonable efforts were made to prevent H.C.’s
    removal. For the following reasons, we affirm in part and reverse and remand in part
    the decision of the juvenile court.
    {¶2}   On April 30, 2014, appellee, Portage County Department of Job and
    Family Services (“PCDJFS”), filed a complaint, alleging that appellant’s son, H.C., was
    neglected, pursuant to R.C. 2151.03(A), and dependent, pursuant to R.C. 2151.04(C).
    The complaint included the following allegations:
    [PCDJFS] received a report regarding H.C. (DOB: 09/30/1999), son
    of Kessleen Baker, on 04/29/2014. It was reported H.C. had made
    comments about killing himself. He was said to have cut himself
    04/28/2014 and 04/29/2014 and says he wants to kill himself. H.C.
    also wrote a suicide note on 04/25/2014 in which he was specific
    regarding the method, date and time of the planned suicide.
    Kessleen Baker was contacted and advised of H.C.’s comments
    and actions and advised to take H.C. to the hospital to seek
    treatment for him. She stated it was not the first time this has
    occurred, therefore she was not concerned. Kessleen refused to
    pick up H.C. from school or take him for treatment. * * *
    H.C. reports that he did have one appointment with a mental health
    professional and was diagnosed with major depressive disorder.
    Additional appointments were made, but H.C. reports his mother
    refuses to take him to the appointments. * * *
    Officer Brian Carnahan of the Kent Police Department ordered the
    removal of H.C. from Kessleen’s care upon her refusal to take H.C.
    for treatment. After being evaluated at Coleman [Access], H.C.
    was transported to Belmont Pines Hospital. * * * PCDJFS is
    requesting Temporary Custody of H.C. to link the child with
    services that will ensure his physical and emotional safety.
    {¶3}   A shelter care hearing was held on April 30, 2014, and a magistrate’s
    order was filed on May 2, 2014, which awarded interim pre-dispositional custody of H.C.
    to PCDJFS. On June 26, 2014, an adjudicatory hearing was held before a magistrate,
    at which the following persons testified.
    2
    {¶4}   Jason Goshe, H.C.’s school counselor, testified that on April 29, 2014,
    during school hours, a student came to the counselor’s office upset that her mother had
    found a suicide note written by H.C. The student’s mother brought the note to the
    school, which Mr. Goshe read over.          Mr. Goshe contacted appellant, who was
    concerned that it had come from another student and stated Mr. Goshe should talk
    directly to H.C. about the note. As he left his office to find H.C., a teacher was entering
    Mr. Goshe’s office with other concerns about H.C. Mr. Goshe testified that when H.C.
    was then brought to his office, he seemed down and like he was having a hard day. Mr.
    Goshe administered a suicide risk screening assessment, on which H.C. scored a 44,
    “significantly higher” than the baseline score of 25. Mr. Goshe called appellant again,
    explained to her the details of the situation, and stated H.C. needed picked up from the
    school and required further evaluation by a mental health professional. Mr. Goshe
    testified that appellant responded she was not going to pick up H.C. from school, and
    she would not permit any of H.C.’s other emergency contacts to pick him up. Appellant,
    instead, repeatedly instructed Mr. Goshe to “call the State.”        After unsuccessfully
    attempting to contact H.C.’s step-father, Mr. Goshe eventually contacted PCDJFS.
    {¶5}   Jeremy Garver-Hughes, H.C.’s homeroom teacher, also testified.           He
    stated that on April 29, 2014, he observed H.C. in his homeroom class with his head
    down.    He approached H.C. regarding make-up assignments, as he had missed a
    couple days of school the previous week, and H.C. stood up and left the classroom. Mr.
    Garver-Hughes testified that he sent a student to look for H.C., who found him in a
    nearby room. Mr. Garver-Hughes was called to the room, where he found H.C. “digging
    3
    in his wrists with a paper clip.” He had H.C. hand him the paper clip and then went to
    find Mr. Goshe.
    {¶6}   Officer Mike Carnahan, with the Kent Police Department, also testified on
    behalf of PCDJFS. Officer Carnahan testified that upon responding to the school, he
    and two other officers found H.C. lying in a fetal position on the floor of the office. H.C.
    told the officer that he wanted to kill himself; he had cut his wrists the night before; he
    cut his wrists with a paper clip that day; and he wrote the suicide note.            Officer
    Carnahan testified that he attempted to contact appellant three times at work and three
    times on her cell phone and left a voicemail to call the police department, but appellant
    did not respond. He testified that after another officer made contact with appellant at
    work, appellant again refused to address H.C.’s immediate mental health concerns, and
    Officer Carnahan ordered H.C.’s removal.
    {¶7}   Andrea Sharar, a social service worker with PCDJFS, testified that she
    arrived at the school after the police ordered H.C.’s removal. She testified that H.C.
    expressed to her that he wanted to kill himself.       Ms. Sharar stated she contacted
    appellant regarding H.C.’s removal and that appellant responded: “It’s not that big of a
    deal”; angrily stated Ms. Sharar “had sent her son to a facility with rapists”; and
    threatened to sue Ms. Sharar and PCDJFS. Ms. Sharar further testified that PCDJFS
    had been unable to locate any current relatives appropriate for H.C.’s temporary
    placement.
    {¶8}   Appellant was the only witness to testify in her behalf. She testified that
    she did not refuse to pick up H.C. from school, but that she was having trouble leaving
    work. She stated she had just missed three days of work for a funeral, and during the
    4
    time the school and police were trying to reach her, she was telling her co-workers that
    she would have to take an early lunch. She testified that the police had hung up on her,
    and that when she called dispatch, she was informed H.C. was already en route to
    Coleman Professional Services. She stated that when she contacted Coleman, they
    told her not to show up there.
    {¶9}   Appellant testified that she had been providing mental health treatment to
    H.C. since February 2011 and outlined the various doctors and treatment facilities she
    had taken him to over the past three years. She testified that H.C. had an appointment
    scheduled with a mental health professional for April 30, 2014, the day after H.C. was
    removed from school, and that this appointment had been rescheduled multiple times
    for various reasons.    Appellant testified that H.C. oftentimes refused to attend his
    appointments, but that she has never refused him treatment. On direct examination,
    appellant confirmed that H.C. had been admitted previously to a Partial Hospital
    Program at Akron Children’s Hospital for “a concern from the school [that he] had
    suicidal ideation”; on cross, she denied that H.C. ever had issues with suicide or suicidal
    ideation. Finally, she denied that she told Mr. Goshe to “call the State.”
    {¶10} On July 3, 2014, a magistrate’s decision was issued, finding H.C. to be a
    neglected child but insufficient evidence to find him dependent. The magistrate made
    the following findings: “School counselor contacted mother regarding [H.C.’s] immediate
    need for mental health counseling to address suicidal ideations.             Mother advised
    counselor she was not coming to get child and counselor should contact the State.
    [H.C.] has received inpatient treatment on 3 prior occasions since December 11, 2012.”
    5
    {¶11} A dispositional hearing was scheduled for July 24, 2014, which was within
    the 90-day period from the filing of the April 30, 2014 complaint. However, on July 15,
    2014, appellant filed objections to the magistrate’s decision concerning the adjudication
    of neglect. The juvenile court then sua sponte continued the dispositional hearing and
    scheduled a hearing on the objections for August 25, 2014.
    {¶12} On August 12, 2014, appellant filed a motion to dismiss the case, claiming
    the juvenile court lost jurisdiction, pursuant to R.C. 2151.35(B)(1), when it failed to hold
    the dispositional hearing within 90 days from the date the complaint was filed (i.e., by
    July 30, 2014). This matter was also scheduled for hearing on August 25, 2014. With
    leave of court, appellant filed supplemental objections to the magistrate’s decision on
    August 25, 2014, prior to the hearing.      Specifically, appellant argued the finding of
    neglect was against the manifest weight of the evidence and that the magistrate did not
    make a proper written determination regarding any reasonable efforts made to prevent
    H.C.’s removal or to enable him to return home.
    {¶13} The juvenile court denied both appellant’s objections to the magistrate’s
    decision and her motion to dismiss on September 8, 2014. The matter was set for a
    dispositional hearing on September 18, 2014.
    {¶14} On September 29, 2014, a magistrate’s decision was issued granting
    temporary custody of H.C. to PCDJFS. The juvenile court adopted the magistrate’s
    decision on the same date and entered it as a matter of record.
    {¶15} Appellant filed her notice of appeal the next day, assigning three
    assignments of error for our review. Appellant’s first assignment of error states:
    6
    {¶16} “The Trial Court committed reversible error in denying Mother’s motion to
    dismiss after losing jurisdiction when the court failed to hold a dispositional hearing
    within 90 days.”
    {¶17} Appellant asserts the trial court lost jurisdiction in this matter when it held
    the dispositional hearing more than 90 days after the date the complaint was filed, in
    violation of R.C. 2151.35(B)(1). Therefore, appellant argues, the trial court erred when
    it denied appellant’s motion to dismiss.     Appellee responds that appellant implicitly
    waived the 90-day time limit by assisting in the delay of the dispositional hearing, and
    therefore, the trial court properly denied the motion to dismiss. We review a trial court’s
    decision regarding a motion to dismiss under R.C. 2151.35(B)(1) de novo. In re D.W.,
    4th Dist. Athens No. 06CA42, 2007-Ohio-2552, ¶11.
    {¶18} R.C. 2151.35(B)(1) states, in pertinent part:
    The dispositional hearing shall not be held more than ninety days
    after the date on which the complaint in the case was filed. If the
    dispositional hearing is not held within the period of time required
    by this division, the court, on its own motion or the motion of any
    party or the guardian ad litem of the child, shall dismiss the
    complaint without prejudice.
    However, as explicitly held by this court and the majority of appellate districts, this 90-
    day time limit is not jurisdictional. In re Matsko, 11th Dist. Lake Nos. 2006-L-230 &
    2006-L-231, 2007-Ohio-2060, ¶16; In re Jones, 9th Dist. Summit No. 20306, 2001 Ohio
    App. LEXIS 1947, *8 (May 2, 2001); In re Kutzli, 
    71 Ohio App. 3d 843
    (3d Dist.1991); In
    re Bailey, 6th Dist. Lucas No. L-96-363, 1998 Ohio App. LEXIS 1571, *5 (Apr. 17,
    1998); In re N.B., 12th Dist. Butler Nos. CA95-02-031, CA95-03-056 & CA95-06-017,
    1996 Ohio App. LEXIS 1486 (Apr. 15, 1996); In re Kimble, 7th Dist. Harrison No. 99 517
    CA, 2002-Ohio-2409, ¶21. “[A]lthough a court may sua sponte dismiss a case and
    7
    when so dismissing it must do so without prejudice, R.C. 2151.35(B)(1) is not self-
    executing. Hence, the parties can waive the time limits.” 
    Kimble, supra
    , ¶26.
    {¶19} Waiver of the 90-day time limit can occur expressly or implicitly. Ohio
    courts have held that “‘[a]n implicit waiver occurs when a party fails to move for
    dismissal when it becomes the party’s right to do so, or when the party assists in the
    delay of the hearing.’” In re J.J., 8th Dist. Cuyahoga No. 86276, 2007-Ohio-535, ¶23,
    quoting In re A.P., 12th Dist. Butler No. 2005-10-425, 2006-Ohio-2717; see also Kutzli,
    Kimble, and 
    Bailey, supra
    . An implicit waiver may also occur when a party files a
    motion to dismiss but subsequently fails to file a petition for an extraordinary writ when
    the motion to dismiss has been denied. See In re Chapman, 11th Dist. Ashtabula No.
    97-A-0001, 1998 Ohio App. LEXIS 1537, *10 (Apr. 10, 1998). See also 
    Matsko, supra
    ,
    ¶16; In re J.M.B., 4th Dist. Ross No. 07CA2978, 2008-Ohio-1285, ¶22-23; In re Martin,
    8th Dist. Cuyahoga No. 78440, 2001 Ohio App. LEXIS 3396, *6-7 (Aug. 2, 2001) (all
    following Chapman).
    {¶20} This court has noted that when a party seeks an immediate dispositional
    hearing, that relief is best effectuated by way of a peremptory writ, rather than reversal
    of an untimely disposition challenged by way of a direct appeal. 
    Chapman, supra
    , *10,
    citing In re Fusik, 8th Dist. Cuyahoga No. 41569, 1980 Ohio App. LEXIS 12046 (June
    12, 1980). To hold otherwise would frustrate the purpose of the Legislature, which is to
    avoid delay in reaching disposition of these time-sensitive cases.         See 
    id. at *8-9.
    Reversal at this time would require the complainant “to re-initiate the proceedings and
    the statutory time periods [would] begin to run anew.” 
    Id. at *9.
    If the trial court had
    granted the motion to dismiss in this case, it also would have resulted in a re-filing of the
    8
    complaint and a new 90-day window. This result would also frustrate the purpose of the
    Legislature.
    {¶21} Here, the trial court had initially scheduled the dispositional hearing within
    the 90-day limitation, which was continued only because appellant filed objections to the
    magistrate’s decision.    It was certainly appellant’s right to file objections to the
    magistrate’s decision finding H.C. to be a neglected child. However, in order to comply
    with R.C. 2151.35(B)(1), the trial court would had to have held the dispositional hearing
    while the objections were still pending; this would be tantamount to issuing a sentence
    before finding a criminal defendant guilty. Appellant also filed supplemental objections
    on August 25, 2014. Pursuant to Juv.R. 40(D)(3), filing objections set in motion other
    time limitations that would necessarily place the date for disposition beyond the 90-day
    limit. The brief extension resulted in the trial court holding the dispositional hearing on
    September 18, 2014, only 50 days beyond the 90-day limit.          Extending the 90-day
    limitation for a brief period to allow the trial court to comply with the time requirements
    for addressing objections is comparable to the provision of R.C. 2945.72(E), which
    extends the statutory speedy trial requirements for a period of time necessary for the
    court to address a defendant’s pretrial motion.
    {¶22} With regard to waiver, appellant did file a motion to dismiss for
    untimeliness, but did not file a petition for an extraordinary writ. Although this failure
    could constitute an implicit waiver of a trial court’s non-compliance with the statute, we
    find here that the trial court was not in violation of the statutory requirement. The trial
    court complied with the statute by scheduling a timely dispositional hearing. We hold
    that continuing that hearing for a reasonable amount of time to address appellant’s
    9
    objections was proper and does not violate the letter or the spirit of the statute.
    Extending the 90-day limitation in this way is much more consistent with the intent of the
    Legislature than dismissing and re-filing the case or requiring a party to file a separate
    extraordinary writ to accomplish the dismissal.
    {¶23} Appellant’s first assignment of error is without merit.
    {¶24} Appellant’s second assignment of error states:
    {¶25} “The Trial Court committed reversible error by finding that the minor child
    was [neglected] against the manifest weight of the evidence.”
    {¶26} Appellant argues the trial court’s finding of neglect was against the
    manifest weight of the evidence because she “was constantly seeking help for her child.
    She was not putting him in harm’s way. She did not refuse him treatment and she did
    not omit care that caused him harm.” Appellee responds that the finding of neglect was
    supported by the manifest weight of the evidence because the only issue was
    appellant’s response to H.C.’s “imminent mental health concerns on April 29, 2014.”
    ‘Weight of the evidence concerns “the inclination of the greater
    amount of credible evidence, offered in a trial, to support one side
    of the issue rather than the other. It indicates clearly to the [trier of
    fact] that the party having the burden of proof will be entitled to their
    verdict, if, on weighing the evidence in their minds, they shall find
    the greater amount of credible evidence sustains the issue which is
    to be established before them. Weight is not a question of
    mathematics, but depends on its effect in inducing belief.’”
    Eastley v. Volkman, 
    132 Ohio St. 3d 328
    , 2012-Ohio-2179, ¶12, quoting State v.
    Thompkins, 
    78 Ohio St. 3d 380
    (1997), quoting Black’s Law Dictionary 1594 (6th
    Ed.1990) (emphasis deleted).
    {¶27} When reviewing a manifest weight challenge, the reviewing court must
    consider all the evidence in the record, the reasonable inferences, and the credibility of
    10
    the witnesses to determine whether, “in resolving conflicts in the evidence, the [trier of
    fact] clearly lost its way and created such a manifest miscarriage of justice that the
    [verdict] must be reversed and a new trial ordered. The discretionary power to grant a
    new trial should be exercised only in the exceptional case in which the evidence weighs
    heavily against the [verdict].” 
    Thompkins, supra
    , 387, quoting State v. Martin, 20 Ohio
    App.3d 172, 175 (1st Dist.1983).
    {¶28} The trial court must find a child is neglected, pursuant to R.C. 2151.35(A),
    by clear and convincing evidence, which is a degree of proof that is more than a mere
    “preponderance of the evidence” but less than “beyond a reasonable doubt”; it is an
    amount of proof that “will produce in the mind of the trier of facts a firm belief or
    conviction as to the facts sought to be established.” Cross v. Ledford, 
    161 Ohio St. 469
    (1954), paragraph three of the syllabus. In its judgment entry, the trial court found, by
    clear and convincing evidence, that H.C. was “neglected” under the following sections of
    R.C. 2151.03(A):
    (3) Whose parents, guardian, or custodian neglects the child or
    refuses to provide proper or necessary subsistence, education,
    medical or surgical care or treatment, or other care necessary for
    the child’s health, morals, or well being;
    (4) Whose parents, guardian, or custodian neglects the child or
    refuses to provide the special care made necessary by the child’s
    mental condition;
    (6) Who, because of the omission of the child’s parents, guardian,
    or custodian, suffers physical or mental injury that harms or
    threatens to harm the child’s health or welfare[.]
    {¶29} Evidence in the record reveals that on April 29, 2014, while H.C. was in
    school, all of the following occurred: a suicide note was discovered; H.C. was observed
    in his classroom with his head down; after H.C. left the classroom, he was found cutting
    11
    his wrists with a paper clip; H.C. admitted to writing the suicide note; and H.C. scored
    “significantly higher” than the baseline score on a suicide risk screening assessment
    administered by the school counselor, Mr. Goshe. Mr. Goshe called appellant twice,
    explained to her the details of the situation, and stated H.C. needed to be picked up
    from the school and required further evaluation by a mental health professional. Mr.
    Goshe testified that appellant responded she was not going to pick up H.C. from school,
    and she would not permit any of H.C.’s other emergency contacts to pick him up.
    Appellant, instead, repeatedly instructed Mr. Goshe to “call the State.”            After
    unsuccessfully attempting to contact H.C.’s step-father, Mr. Goshe eventually contacted
    PCDJFS.
    {¶30} Kent Police responded to the school. Officer Carnahan testified that H.C.
    told him he wanted to kill himself; he cut his wrists the night before; he cut his wrists
    with a paper clip that day; and he wrote the suicide note. Officer Carnahan attempted to
    contact appellant three times at work and three times on her cell phone; appellant did
    not respond. Another officer made contact with appellant at work, after explaining to
    appellant’s co-worker that it was an emergency, and appellant insisted on speaking with
    a police supervisor. Appellant again refused to address H.C.’s immediate mental health
    concerns, and Officer Carnahan ordered H.C.’s removal.
    {¶31} Ms. Sharar, a social worker with PCDJFS, arrived at the school, and H.C.
    expressed to her that he wanted to kill himself. Ms. Sharar contacted appellant, who
    stated, “It’s not that big of a deal,” and threatened to sue Ms. Sharar and PCDJFS. H.C.
    was then transported to Coleman Professional Services and, ultimately, to Belmont
    Pines.
    12
    {¶32} Based on these specific facts and all of the evidence presented at the
    adjudicatory hearing, we find the juvenile court did not err in finding clear and
    convincing evidence that H.C. is neglected as defined in R.C. 2151.03(A)(3), (4), and
    (6). There is nothing to suggest that any of the evidence is legally insufficient to support
    the court’s judgment or that its judgment is based on an irrational view of the evidence.
    Also, there is nothing to suggest that the trier of fact clearly lost its way and created a
    manifest miscarriage of justice in adjudicating H.C. neglected.
    {¶33} Appellant’s second assignment of error is without merit.
    {¶34} Appellant’s third assignment of error states:
    {¶35} “The Trial Court committed reversible error by not following statute when it
    came to the reasonable efforts’ findings.”
    {¶36} Appellant asserts the trial court did not comply with R.C. 2151.419(B)(1),
    in that it did not “make specific findings regarding how the agency fulfilled [its] duty to
    perform reasonable efforts.” We agree.
    {¶37} R.C. 2151.419(A)(1) provides, in pertinent part:
    [A]t any hearing held pursuant to section * * * 2151.353 of the
    Revised Code at which the court removes a child from the child’s
    home or continues the removal of a child from the child’s home, the
    court shall determine whether the public children services agency
    or private child placing agency that filed the complaint in the case,
    removed the child from home, has custody of the child, or will be
    given custody of the child has made reasonable efforts [1] to
    prevent the removal of the child from the child’s home, [2] to
    eliminate the continued removal of the child from the child’s home,
    or [3] to make it possible for the child to return safely home. The
    agency shall have the burden of proving that it has made those
    reasonable efforts.
    {¶38} R.C. 2151.419(B)(1) provides:
    13
    A court that is required to make a determination as described in
    division (A)(1) * * * of this section shall issue written findings of fact
    setting forth the reasons supporting its determination. If the court
    makes a written determination under division (A)(1) of this section,
    it shall briefly describe in the findings of fact the relevant services
    provided by the agency to the family of the child and why those
    services did not prevent the removal of the child from the child’s
    home or enable the child to return safely home.
    {¶39} It is apparent from a reading of the statute that the findings required of the
    trial court need to relate, at a minimum, to the relevant services provided to prevent the
    child’s initial removal from the home and the relevant services provided to enable
    reunification.     The Twelfth Appellate District has provided an explanation of this
    requirement:
    In situations where a child services agency did not have prior
    contact with a child but removes the child from his home during an
    emergency in which the child could not safely remain in the home,
    a trial court may determine that the agency made reasonable
    efforts to prevent the removal from the home or to enable the child
    to return safely home. R.C. 2151.419(A)(1). The child’s health and
    safety are paramount considerations in making such a
    determination. 
    Id. ‘[T]he issue
    is not whether the agency could
    have done more, but whether it did enough to satisfy the
    reasonableness standard under the statute.’
    In re J.M., 12th Dist. Clermont No. CA2006-11-096, 2007-Ohio-4219, ¶16, quoting In re
    K.M., Butler App. No. CA2004-02-052, 2004-Ohio-4152, ¶23.
    {¶40} We note that appellant raised this same issue in her supplemental
    objections to the magistrate’s decision. In its adjudicatory order, the magistrate found
    that reasonable efforts were made to prevent H.C.’s removal, to eliminate his continued
    removal, or to make it possible for H.C. to return home. No further explanation was
    provided. In ruling on appellant’s objections, the trial court did not elaborate on the
    magistrate’s findings of fact in this regard.
    14
    {¶41} The trial court found that “because of the exigent circumstances of the
    mental health crisis that [H.C.] had on April 29, 2014 and his mother’s failure to
    cooperate to find appropriate treatment for her son that law enforcement officials had no
    choice but to involuntarily civil commit H.C. to a mental health institution.” The trial court
    further stated, more generally, that “[t]he Agency made reasonable efforts to seek
    cooperation from the child’s mother but she did not cooperate with law enforcement,
    school officials, and/or [PCDJFS].”
    {¶42} Appellee first argues that the “statute merely advises that a juvenile court
    issue written findings.” This contention is inaccurate. The statute clearly requires that
    explicit findings be made by the trial court. See, e.g., In re J.G., 9th Dist. Wayne No.
    12CA0037, 2013-Ohio-417, ¶33-34; In re Litz, 11th Dist. Geauga No. 2001-G-2367,
    2001 Ohio App. LEXIS 5061, *15-16 (Nov. 5, 2001). Ohio law clearly requires these
    findings to be made, and a “trial court’s failure to identify in its decision the specific
    efforts expended by Children’s Services” to prevent the child’s removal or to enable
    reunification is prejudicial error. 
    J.M., supra
    , ¶19, citing R.C. 2151.419(B)(1) and In re
    Bolser, Butler App. Nos. CA99-02-038 & CA99-03-048, 2000 Ohio App. LEXIS 260,
    *20-21 (Jan. 31, 2000).
    {¶43} Next, appellee argues that, even if it is a requirement, the trial court did
    make sufficient written findings in its judgment entry. In support, appellee cites to a
    decision from this court: In re Graves, 11th Dist. Geauga No. 99-G-2219, 2000 Ohio
    App. LEXIS 2762 (June 23, 2000). This case is inapposite. In Graves, the child was
    the victim of repeated sexual abuse in the home. 
    Id. The record
    was replete with
    reasons as to why the child could not be returned to the home. Although the trial court’s
    15
    judgment entry lacked findings in support of its determination that reasonable efforts
    were made, we found “other indications in the record which amply demonstrate that the
    juvenile court engaged in the required reasonable efforts determination.” 
    Id. at *39.
    This court held that, “[o]n the whole, therefore, the record manifestly supports the
    conclusion that the juvenile court satisfied its duty under R.C. 2151.419 to engage in the
    reasonable efforts determination * * *.” 
    Id. at *40.
    {¶44} The record in this case does not amply demonstrate that the juvenile court
    engaged in the required reasonable efforts determination, and appellee does not direct
    our attention to anything in the record that supports its argument. The trial court did
    make explicit findings regarding reasonable efforts taken to prevent H.C.’s initial
    removal: e.g., attempting “on many occasions to contact” appellant and that appellant
    “did not cooperate with law enforcement, school officials, and/or the [PCDJFS].”
    However, this court is unable to determine from the record whether these findings also
    apply to any attempt to return H.C. to his home, and no other findings are provided with
    regard to reunification attempts. In short, there is no evidence—in the judgment entry or
    in the record—to support the trial court’s finding that efforts were made regarding
    reunification or that any efforts made were reasonable.
    {¶45} The dissent asserts that this holding “overlooks the fact that this case was
    at the initial adjudicatory stage.” We have not overlooked this fact. The requirements of
    R.C. 2151.419(A)(1) explicitly apply to adjudicatory hearings: “[A]t any hearing held
    pursuant to section 2151.28 * * * at which the court removes a child from the child’s
    home or continues the removal of a child from the child’s home, the court shall” make
    16
    the above-referenced findings. R.C. 2151.28 is titled “Adjudicatory hearing; shelter care
    determination; summons.” It states, in pertinent part:
    At an adjudicatory hearing held pursuant to division (A)(2) of this
    section, the court, in addition to determining whether the child is an
    abused, neglected, or dependent child, shall determine whether the
    child should remain or be placed in shelter care until the
    dispositional hearing. When the court makes the shelter care
    determination, all of the following apply: * * * (2) The court shall
    comply with section 2151.419 of the Revised Code.
    R.C. 2151.28(B) (emphasis added). We also note that the adjudicatory hearing was
    held on June 26, 2014—fifty-seven days after the complaint was filed on April 30, 2014.
    One would hope that some reasonable effort had taken place to determine whether the
    child could return safely home within that time. There is simply no evidence in the
    record of any efforts made.
    {¶46} Appellant’s third assignment of error is well taken.
    {¶47} The judgment of the Portage County Court of Common Pleas, Juvenile
    Division, is affirmed in part and reversed in part; this case is remanded for the trial court
    to make factual findings as required by R.C. 2151.419(B)(1).
    COLLEEN MARY O’TOOLE, J., concurs,
    DIANE V. GRENDELL, J., dissents in part with a Dissenting Opinion.
    ____________________
    DIANE V. GRENDELL, J., dissents in part with a Dissenting Opinion.
    17
    {¶48} I agree with the majority’s conclusions that the juvenile court had
    jurisdiction to issue a dispositional order and that its order was not against the manifest
    weight of the evidence.
    {¶49} I dissent from the majority’s decision to reverse and remand this case on
    the grounds that the court failed to comply with R.C. 2151.419. The court did issue
    “written findings of fact setting forth the reasons supporting its determination” that
    Portage County Job and Family Services “made reasonable efforts to prevent the
    removal of [H.C.] from [H.C.’s] home.” R.C. 2151.419(B)(1) and (A)(1).
    {¶50} As acknowledged by the majority, the juvenile court expressly found that
    reasonable efforts were made to prevent H.C.’s removal. Specifically, “[t]he Agency
    made reasonable efforts to seek cooperation from the child’s mother but she did not
    cooperate with law enforcement, school officials, and/or the Portage County Department
    of Job and Family Services.”      More specifically, the court found “that [H.C.’s] Kent
    school counselors, the Kent Law Enforcement Officials, and the Portage County
    Department of Job and Family Services attempted on many occasions to contact
    [H.C.’s] mother,” but “were informed that she was not coming to get her son and that the
    school counselors should contact the State of Ohio.” Bearing in mind that H.C. was
    threatening and attempting to commit suicide, repeated appeals to his mother that she
    seek psychiatric care for her son certainly constitute reasonable efforts.
    {¶51} Incredibly, the majority feels compelled to reverse on the grounds that
    “this court is unable to determine from the record whether these findings also apply to
    any attempt to return H.C. to his home, and no other findings are provided with regard
    to reunification attempts.” Supra at ¶ 44. The majority overlooks the fact that this case
    18
    was at the initial adjudicatory stage. The judgment appealed merely adjudicates H.C.
    as neglected and awards Job and Family Services interim pre-dispositional custody – it
    does not prolong or extend Job and Family Services’ custody of a child already
    removed. Due to continuances, the adjudicatory hearing was held fifty-seven days after
    the complaint was filed on April 30, 2014 (the day following H.C.’s removal).
    Nevertheless, the issue before the juvenile court was whether H.C. was a dependent or
    neglected child at the time of his removal, not whether Job and Family Services had
    made reasonable efforts to reunify H.C. with his mother after his removal.1
    {¶52} The majority is correct that R.C. 2151.419(A)(1)’s requirement that the
    “reasonable efforts [be made] to prevent the removal of the child from the child’s home,
    to eliminate the continued removal of the child from the child’s home, or to make it
    possible for the child to return safely home” applies to adjudicatory hearings. In fact,
    this requirement equally applies to probable cause hearings (R.C. 2151.31), detention
    and shelter care hearings (R.C. 2151.314), temporary emergency care hearings (R.C.
    2151.33), as well as dispositional hearings (R.C. 2151.353). There is no requirement,
    however, that R.C. 2151.419(A)(1) be applied mechanically and without regard for the
    particular facts, issues, and procedural posture of a given case, as demanded by the
    majority.    The issue of reunification does not become operative until the issue of
    removal is settled. It would be as nonsensical to require the juvenile court to make
    findings regarding reunification efforts at a shelter care hearing as it is in the present
    case.
    1. That inquiry was certainly relevant at the subsequent dispositional hearing, which, on account of the
    delay in holding the initial adjudicatory hearing, was itself continued.
    19
    {¶53} Here, the juvenile court made express findings relevant to Job and Family
    Services’ efforts to prevent the removal of H.C.         Without question Job and Family
    Services has the obligation to make reasonable efforts to determine whether H.C. may
    safely return home, and such evidence should be presented at the appropriate stage of
    these proceedings.
    {¶54} For legal support, the majority relies on In re J.M., 12th Dist. Clermont No.
    CA2006-11-096, 2007-Ohio-4219. A fair application of the law in J.M. to the facts of this
    case demonstrates that the juvenile court satisfied its statutory duty with respect to the
    reasonable efforts determination. The court in J.M. stated that “the law requires the
    court to briefly describe the relevant services provided by the agency and why they
    were not effective in restoring [the child] to his home.” 
    Id. at ¶
    20.
    {¶55} That is precisely what the juvenile court did in the present case. A suicidal
    H.C. required immediate psychiatric care. Portage Job and Family Services, as well as
    law enforcement and school officials, made repeated appeals to H.C.’s mother to seek
    the appropriate care. She refused. There was nothing more that could be done. This
    is explicitly set forth by the juvenile court in its order. In contrast, the lower court in J.M.
    “fail[ed] to identify in its decision the specific efforts expended by Children’s Services to
    prevent [the child’s] removal.” 
    Id. at ¶
    19.
    {¶56} Unless it contemplates a new adjudicatory hearing, the majority is
    essentially remanding this case for the juvenile court to rewrite its judgment to state
    more explicitly what it has already explicitly stated. Accordingly, I respectfully dissent
    from the decision to reverse and remand.
    20
    

Document Info

Docket Number: 2014-P-0059

Citation Numbers: 2015 Ohio 3545

Judges: Cannon

Filed Date: 8/31/2015

Precedential Status: Precedential

Modified Date: 4/17/2021