In re J.C. , 2021 Ohio 3716 ( 2021 )

[Cite as In re J.C., 2021-Ohio-3716.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of [J.C.] a minor, :
[J.M., : No. 20AP-358
(C.P.C. No. 13JU-6011)
Appellant.] :
(REGULAR CALENDAR)
:
PLURALITY D E C I S I O N
Rendered on October 19, 2021
On brief: Yeura R. Venters, Public Defender, and Timothy
Pierce, for appellant J.M. Argued: Timothy Pierce.
On brief: Robert McClaren, for appellee Franklin County
Children Services. Argued: Robert McClaren.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, J.
{¶ 1} Appellant-mother, J.M., appeals the March 13, 2020 order of the Franklin
County Common Pleas Court Division of Domestic Relations, Juvenile Branch granting
permanent custody of her daughter J.C. to appellee Franklin County Children Services
("FCCS"). (Jgmt. Entry Granting Permanent Custody at 16.) J.M. argues that the trial court
lacked jurisdiction to grant permanent custody to FCCS, the trial court's decision to grant
the motion was against the manifest weight of the evidence, the juvenile court had erred
two and one-half years earlier by terminating provisional dispositional orders without
considering whether to return custody of J.C. to J.M., and the court erred by failing to
dismiss FCCS's permanent custody motion at a pretrial hearing, when both the guardian
ad litem and FCCS indicated that they believed that granting the motion was not necessarily
in J.C.'s best interest.
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I. Factual and Procedural Background
{¶ 2} FCCS has been involved in this case for at least seven years. J.C. (d/o/b
1/19/2006) has been in the legal custody of at least four different entities during the period
of involvement—first her mother, then FCCS, then her foster parents, then her maternal
aunt, then FCCS again. J.C.'s mother J.M. is a serious problem drinker—she currently
resides out of state, has intermittently been homeless, has frequently been unable or
unwilling to comply with court restrictions and orders, and failed to appear at the
permanent custody trial. J.C.'s father is in prison and similarly did not appear. J.C.'s
maternal aunt, who obtained custody of J.C. at one point during the past seven years, has a
serious mental illness that is often uncontrolled.
{¶ 3} The initial neglect and dependency complaint alleged:
On or about, December 8, 2012, CPD was dispatched to * * *
Oak St. in Columbus, Ohio on a report of a disturbance
involving an intoxicated female. Upon arrival, officers were
advised that mother [J.M.] had gone to the individual's home
to attend a party and brought her two children with her[.]
[J.M.] allegedly became aggressive by verbally yelling at
everyone in the home including her children. [J.M.] became
verbally belligerent towards the officers and began walking into
the street yelling, screaming, and stumbling. [J.M.] was placed
under arrest and charged with Disorderly Conduct. [J.C.] and
[her older stepbrother O.S.] were transported to Franklin
County Children Services for safekeeping under LAW status.
The children were placed with a Maternal Aunt, [Y.M.] on an
out-of-home safety plan. On January 31, 2013, Maternal Aunt
presented at the Agency's intake office with the children and
appeared altered in her thinking and was displaying signs of
paranoia. Maternal Aunt reported that she had not slept or
eaten in four days. Maternal Aunt further reported that she was
fearful that someone was going to kill her and reported that her
phones were tapped and people were listening. She admitted to
a prior mental health history and not seeking treatment. * * *
The Agency was granted LAW status of the children for
safekeeping. Maternal Aunt remains at Netcare and there are
no other alternative caregivers available or able to care for the
children at this time. The Agency learned that the children have
witnessed [J.M.] physically fighting with her boyfriend, sister,
and neighbor in the past. [J.M.] is currently homeless and is
not completing drug screens. Since that time, [J.M.] continues
to be unable to provide proof of sobriety and has no income
sufficient enough to meet the needs of her children. Maternal
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Aunt has not cooperated with service or [by] providing reports
from her mental health providers.
(Compl. at 1-2.) J.M. admitted to a dependency count and the neglect count was dismissed,
and FCCS was granted temporary custody of J.C. on June 19, 2013. (June 19, 2013 Mag.'s
Decision at 1-3.)
{¶ 4} J.C. has not been in the custody of her mother J.M. for the past seven years,
although there have been overnight visits and some periods where J.C. was in J.M.'s care
and control pursuant to court orders. FCCS has filed for permanent custody of J.C. on two
separate occasions—FCCS' first motion for permanent custody was denied on December 8,
2015, and legal custody of J.C. was granted to her foster parents at that time. But she did
not remain with them—the foster parents subsequently relinquished custody and J.C. was
taken into the care of her maternal aunt in August 2016. J.C.'s older stepbrother, who had
also been in the legal custody of the foster parents, was placed in the custody of his
grandmother in Georgia.
{¶ 5} On June 2, 2017, FCCS filed a motion for an alternative disposition of
temporary custody over J.C., which was granted on September 13, 2017. FCCS' second
motion for permanent custody, the one being reviewed in this appeal, was filed on
February 12, 2018. The filing was mandatory based on R.C. 2151.413, and at a pretrial
hearing on September 14, 2018, FCCS' counsel indicated that the agency was "simply
ask[ing] for a trial date and, I guess, we'll just continue to see what case-plan progress [J.M.]
makes between now and then." (Sept. 14, 2018 Tr. at 6.) The trial court observed that "this
is the second motion for permanent custody. The first was denied, but this motion's been
pending since February and by law it's supposed to be heard within four months." Id.Although there were some representations that J.M. had made some substantial progress
on both her case plan and had made some general life improvements, she had missed
several mandatory urine screens in the month prior to the hearing, had not completed
several of her case plan objectives, and there was no indication from any of the parties or
attorneys present that a hearing on FCCS' permanent custody motion could not or should
not proceed. At a follow-up pretrial hearing six weeks later, the court examined J.M.'s case
plan and treatment recommendations, and FCCS expressed the opinion that its motion
needed to proceed; FCCS' counsel took the position that J.C. "needs permanency * * * we're
still five years into it and [J.M.] is still only doing 50 percent of her screens and hasn't
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started drug and alcohol treatment." (Oct. 25, 2018 Tr. at 30-31.) [J.M.'s] counsel stated
that although her client is "night and day from when I met her," she admitted her
understanding that "I know the trial need[s] to [be] set, I get it, we need to move forward.
This child needs permanency." Id. at 33.
{¶ 6} The court set another pretrial hearing for January 10, 2019 with an expected
trial to follow. At that hearing, all parties agreed that [J.M.] had made progress in her drug
and alcohol treatment, and although she had missed some screens, all that she submitted
were negative. Accordingly, at that time there were some discussions about trying to resolve
the case short of a permanent custody trial and termination of J.M.'s parental rights; it was
clear that all parties present, in the words of FCCS' counsel, were "really eager not to PCC
this child," but that "at some point, we've either got to fish or cut bait and say it's good
enough and the child is going to go home or we're done" giving [J.M.] additional chances
and terminate her parental rights. (Jan. 10, 2019 Tr. at 11.) In an apparent attempt to
resolve FCCS' continuing concerns, J.M.'s attorney suggested to the court that J.M. could
wear a secure continuous remote alcohol monitoring ("SCRAM") bracelet. The case was
then continued until April 1, 2019 to allow J.C. to testify in camera.
{¶ 7} On March 28, 2019, J.C.'s guardian ad litem ("GAL") filed a separate motion
for permanent custody to FCCS, noting that J.M. had failed to complete her case plan
objectives in that she "does not regularly or consistently complete drug screens in order to
demonstrate sobriety * * * has previously completed treatment yet continued to abuse
alcohol. Since March 23, 2017, [J.M.] has missed 228 [drug/alcohol] screens. Of the 78 she
has completed, 13 were positive for alcohol metabolites (ETG and/or ETS), one was positive
for opiates, and two were positive for creatinine out of range (an indicator of possible
dilution)." (Mar. 28, 2019 Mot. at 5-6.)
{¶ 8} On April 1, 2019 and prior to the commencement of the scheduled in camera
interview, FCCS stated without any prior written warning that it "would ask the Court to
withdrawal the [February 12, 2018] motion for permanent custody" and terminate
temporary custody to FCCS under Court-Ordered Protective Supervision ("COPS") "based
on [J.M.'s] case plan compliance and what my Agency believes to be in the best interest of
the child." (Apr. 1, 2019 Tr. at 4.) The GAL was opposed to the termination of temporary
custody, arguing that it "cannot recommend that it would be in [J.C.'s] best interest to go
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No. 20AP-358
home without [J.M.'s] proven sobriety," id. at 6, and observed that he had "filed a
permanent custody motion and unfortunately did not get that filed in time to perfect service
by today," and requested a continuance for service and trial. Id. at 4. The trial court, in
response, entered an order finding that J.M. had been served with the GAL's PCC motion.
The case was continued, but the court also ordered that J.M. was to be allowed overnight
visits pending the next hearing and ordered a SCRAM bracelet for J.M. at FCCS' expense.
(Apr. 1, 2019 Entry/Interim Order.)
{¶ 9} All parties continued to participate in the litigation, just as if FCCS had not
suggested that it was withdrawing its motion. The case was continued several times, as it
appeared J.M. was making progress. She wore the SCRAM bracelet without incident for
several months and tested clean for alcohol. The GAL's motion remained pending during
this period, but it seems that the court and the parties were in agreement that any action
on permanent custody motions would not be taken. The trial court never affirmed on the
record that FCCS' permanent custody motion had been withdrawn, and the court continued
to exercise jurisdiction over the case rather than entering an order terminating temporary
custody.
{¶ 10} The court conducted a second in camera interview of J.C. on September 10,
2019, and at that point she indicated that she had moved around a lot, she wanted to stay
in her current school district (Whitehall), she liked staying with her current foster mother
L.M., and while she was not ready to live with her [J.M.] yet, she did want to have "[l]onger
time with my mom [J.M.]." (Sept. 10, 2019 Tr. at 44.) Following the second in camera
interview, the trial court entered an order granting J.C. "leave status" to have an extended
stay with J.M. "as of the end of the school day on 9.13.19. [J.M.] is to provide transportation
to and from school. Visitation with foster mother [L.M.] is to occur every other weekend.
[J.M.] is to immediately enroll in counseling through UMCH, Main Street location, and
commence at first scheduling opportunity." (Sept. 12, 2019 Jgmt. Entry/Interim Orders.)
{¶ 11} Despite this apparent progress, on November 5, 2019 the GAL filed a report
recommending custody be granted to foster mother L.M., reporting that J.C. had missed
some 12 days of school while she was on "leave status" with [J.M.] and that there was
concern that J.C.'s medical needs were not being properly addressed. Counsel for FCCS
stated at the November 5, 2019 hearing that "my client does not want to prosecute the
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No. 20AP-358
Motion for Permanent Court Commitment that we filed," because things were going well in
the home, but observed that "this is directly contradicted by what the child told the lay
Guardian ad Litem and the attendance reports we've seen today." (Nov. 5, 2019 Tr. at 2.)
FCCS again took the position that its motion should be withdrawn, that temporary custody
should be terminated, and that J.C. should stay with J.M. under COPS. Id. at 45. But the
court, for its part, again refused to consider any disposition at that time:
JUDGE RAPP: Well, without any real evidence before the
Court, I'm just getting reports, we have very conflicting reports
but the -- the Agency's -- the caseworker is hearing -- not
hearing the same thing as the -- as the CASA Volunteer and
[J.M.'s] position is basically pretty much the same as what the
Agency is saying, that -- there's nothing that serious in regard
to her health care. I'm a little uncomfortable in making this
decision without actually hearing any evidence.
***
So, as I see it, [at the next hearing on December 11, 2019] we're
gonna (sic) -- the Court's going to decide whether to grant
[J.M.] legal custody with protective supervision, or return the
child to foster care, any questions?
***
Well, between now and then, I guess the best thing for [J.M.]
to do is make sure that she is getting [J.C.] to all of her
appointments, making sure she has her oxygen, gets to school
on time, gets her grades up; anything else?
Id. at 45-48. The parties present, including [J.M.], signed a continuance entry "to hear
evidence on the 2 oral motions before the court." (Dec. 11, 2019 Entry.)
{¶ 12} On December 4, 2019, the GAL filed a new "Motion for Alternative
Disposition Granting Legal Custody to [foster mother L.M.]," observing that "[s]ince being
placed with [J.M.], [J.C.] has missed a significant amount of school and has not attended
school since November 12, 2019. The GAL is also concerned about [J.C.'s] medical
condition and her compliance with ongoing treatment." (Mot. for Alternative Disposition
at 2.)
{¶ 13} On December 11, 2019, [J.M.] and J.C. failed to appear for a scheduled
hearing on all pending motions. It seems that J.M. had absconded to Pittsburgh with J.C.,
ostensibly for a new job. The trial court immediately terminated J.C.'s "leave status" and
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No. 20AP-358
ordered J.M. to return J.C. to FCCS custody immediately. That same date, counsel for all
parties signed an entry continuing the case "to set pending motions for trial - PCC x2 and
motion for LC [legal custody] to former fo[ster] Mo[ther]." (Dec. 11, 2019 Jgmt.
Entry/Interim Orders.)
{¶ 14} The case finally proceeded to trial on February 26, 2020 at 10:00 a.m. In the
interim period, J.C. was located in Pittsburgh and returned to Columbus, and she was again
placed in the home of foster mother L.M. J.M. did not appear for the trial—according to
her attorney, "she has relocated to Pittsburgh. She has two jobs in Pittsburgh currently; she
works at Giant Eagle in the hot deli section and she's in training at Rite Aid to be a pharmacy
tech, and because of both she could not get transportation to be here today." (Feb. 26, 2020
Tr. at 4.) Prior to the commencement of trial, the GAL withdrew the motion for alternative
disposition at the request of foster mother L.M., who had indicated she was no longer able
to accept legal custody of J.C. but that she would be willing to adopt J.C. "if the Agency will
allow it." Id. at 9. J.C. had also informed the GAL that she wished to be adopted by foster
mother L.M.
{¶ 15} And despite its position at the two prior hearings, FCCS determined it was
best to go forward and seek permanent custody:
ATTORNEY SALING: Next month will make three years that
this child has been in foster care most recently [but] her length
of custodial history is actually about five years.
***
This case is very difficult given the child's age, given that the
child has regular contact with [J.M.] as I understand by phone
every day.
But [J.M.], who everyone had been hoping would be able to
reunify, seems like the end -- towards the end of the last year
things just went badly. * * * The Agency caseworker has lost
contact with [J.M.] * * *. To date we don't have an address for
[J.M.]. We have not been given any information from her about
being employed anywhere, we haven't been given any way to
follow up to, you know, corroborate or get to the bottom of any
of her claims of stability.
[And] the SCRAM monitor, which had been provided to
facilitate getting to the bottom of case, was removed according
to the report the Agency received in November.
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No. 20AP-358
So we've -- we're reluctantly saying to the Court that we think
it would be best to go forward today.
Id. at 12-14. With that, the GAL clarified that "with Children Services going forward on their
motion for permanent custody I would also withdrawal the Guardian's motion for
permanent custody as it's duplicative." (Emphasis added.) Id. at 26. The case proceeded
to trial on FCCS' motion for PCC—there were only two witnesses, the FCCS caseworker and
the lay GAL, and all parties waived closing argument. Id. at 123.
{¶ 16} On March 13, 2020, the trial court issued a 16-page written judgment
granting the motion for PCC, containing thorough written findings of fact and conclusions
of law. (Jgmt Entry Granting Permanent Custody.) The trial court held that clear and
convincing evidence established that: (1) J.C. could not be placed with a parent within a
reasonable time and should not be placed with a parent; (2) J.C. had been in the agency's
custody for 2 years or longer and no longer qualifies for temporary custody; (3) J.C. does
not meet the requirements for a planned permanent living arrangement; and (4) no relative
or other person has come forward to seek legal custody. Id. at 11. As a result, the court
concluded that "[t]here is no practical alternative to a permanent placement of [J.C.] with
[FCCS] for the purpose of adoption." Id. at 14. Following an analysis of J.C.'s best interest
using the R.C. 2151.414(D)(2) factors, the court concluded that "all four of the
circumstances set forth [in the statute] were proven by clear and convincing evidence," id.
at 15, and also that "returning [J.C.] to [J.M.] would create a significant risk to her physical
and mental health":
[J.C.] is not opposed to the permanent custody motion and
wants to be adopted. Although she has phone contact with
[J.M.] daily, [J.C.] has consistently expressed her wish to
remain with her foster mother.
***
[J.C.] was removed from [J.M.'s] custody when the Child was a
7-year-old. She is now a 14-year-old.
[J.C.] has waited seven years for permanency. She has sickle
cell disease, asthma, and sleep issues. She needs oxygen
equipment and daily medication. When on "LEAVE Status,"
[J.C.] missed school and at least one medical appointment.
[J.M.] cannot provide the care and stability needed by the
Child.
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No. 20AP-358
(Emphasis sic.) Id. at 14. The trial court granted FCCS' motion and committed J.C. to the
permanent custody of FCCS. This timely appeal followed.
II. Appellate review of permanent custody judgments.
{¶ 17} A trial court's determination in a permanent custody case will not be reversed
on appeal unless it is against the manifest weight of the evidence. Judgments are not against
the manifest weight of the evidence when all material elements are supported by
competent, credible evidence. Accordingly, an appellate court will not overturn a
permanent custody order when it is supported by competent, credible evidence. Further, in
reviewing a judgment granting permanent custody to FCCS under the manifest weight
standard, an appellate court must make every reasonable presumption in favor of the
judgment and the trial court's findings of facts. If the evidence is susceptible of more than
one construction, the court of appeals must give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the juvenile court's verdict and
judgment. (Citations and quotations omitted.) See generally In re J.W., 10th Dist. No.
19AP-122, 2019-Ohio-4775, ¶ 21.
{¶ 18} Moreover, parents have a constitutionally protected fundamental interest in
the care, custody, and management of their children. But parental rights are not absolute,
and a parent's natural rights are always subject to the ultimate welfare of the child.
Accordingly, the state may terminate the parental rights of natural parents, but such
termination must be in the best interest of the child. See generally id. at ¶ 22. R.C. 2151.413
authorizes a public children services agency to file a motion requesting permanent custody
of a child for which it has temporary custody, and when the child has been in the temporary
custody of a public agency for 12 or more months out of a consecutive 22-month period, the
agency is required to file a permanent custody motion. R.C. 2151.413(D)(1), cited in J.W. at
¶ 23. R.C. 2151.414(B)(1) permits a court to grant permanent custody of a child to a public
agency if, after a hearing, it determines by clear and convincing evidence, that "(1) any of
the circumstances in R.C. 2151.414(B)(1)(a) through (d) exist, and (2) such relief is in the
best interest of the child." In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 14. "Clear
and convincing evidence" is " 'more than a mere preponderance of the evidence but does
not require proof beyond a reasonable doubt.' " J.W. at ¶ 24, quoting In re K.L., 10th Dist.
No. 13AP-218, 2013-Ohio-3499, ¶ 14. Rather, it means evidence that produces a firm belief
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No. 20AP-358
or conviction as to the facts sought to be established. In re K.H., 119 Ohio St.3d 538, 2008-
Ohio-4825, ¶ 42, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶ 19} Thus, "[a] decision to award permanent custody requires the trial court to
take a two-step approach." K.L. at ¶ 18. "First, a trial court must determine if any of the
factors set forth in R.C. 2151.414(B)(1) apply," and second, the court determines whether
granting permanent custody to FCCS is in the best interest of the child. Id. at ¶ 18-20.
Relevant to this appeal, R.C. 2151.414(B)(1) provides the following circumstances under
which FCCS is authorized to file a motion for permanent custody:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, or has not
been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised
Code, the child was previously in the temporary custody of an
equivalent agency in another state, and the child cannot be
placed with either of the child’s parents within a reasonable
time or should not be placed with the child’s parents.
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-
two-month period * * *.
Once it is established that one of the R.C. 2151.414(B)(1) circumstances is met, a trial court
ruling on a motion for permanent custody must determine whether permanent custody is
in the best interest of the child. R.C. 2151.414(D)(1)(a) through (e) set forth the relevant
factors that the court must consider in determining what is in the best interest of the child,
and all of these factors are of equal importance under the statute. In re Schaefer, 111 Ohio
St.3d 498, 2006-Ohio-5513, ¶ 56.
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
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No. 20AP-358
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 215.414(D)(1)(a) through (e).
III. Assignments of error and review
{¶ 20} J.M. now asserts four assignments of error with the trial court's judgment:
[I.] The trial court was without jurisdiction to dispose of the
agency's February 12, 2018 PCC motion and award permanent
court custody of J.C. to FCCS inasmuch as the agency withdrew
that motion on April 1, 2019. The trial court's decision and
entry awarding PCC to the agency was therefore void ab initio.
[II.] The court's award of permanent custody to the agency
was not supported by clear and convincing evidence and was
against the manifest weight of the evidence.
[III.] At the September 11, 2017 hearing the juvenile court
plainly erred when it modified and/or terminated the then-
existing dispositional orders without considering whether
returning J.C. to [J.M.] was within [the] child's best interest
pursuant to R.C. 2151.42(A).
[IV.] The lower court erred when at the 11/5/2019 hearing it
failed to dismiss the PCC motions of the agency (assuming,
without conceding, it was still pending) and GAL, who both
represented to the court that PCC was not in J.C.'s best interest.
{¶ 21} In her first assignment of error, J.M. contends the trial court lacked subject-
matter jurisdiction to decide the issue of permanent custody because FCCS withdrew its
motion for permanent custody on April 1 and again on November 5, 2019.
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No. 20AP-358
{¶ 22} But, the record as to withdrawal of the motion is far more equivocal than J.M.
suggests. In general, it appears that FCCS' counsel was simply operating on the information
she had at the time of the hearings, and fully acquiesced in continuing the case each time
so that more information could be obtained. At no point did any of the counsel below
suggest that or act as if the court had no authority to proceed. A detailed review of the record
indicates that all parties and the trial court itself believed that the issue of J.C.'s custody
remained unresolved and that a permanent custody order was still a possible outcome. In
fact, after J.M. absconded to Pittsburgh and failed to appear for the December 11, 2019
hearing, all present parties, including FCCS' counsel and J.M.'s counsel, signed a
continuance "to set pending motions for trial - PCC x2 and motion for LC [legal custody]
to former fo[ster] Mo[ther]." (Dec. 11, 2019 Mot. and Entry for Continuance.)
{¶ 23} Moreover, although it is true that the proponent of a motion is generally not
required to seek leave prior to withdrawing the motion, see, e.g., Byers v. Robinson, 10th
Dist. No. 08AP-204, 2008-Ohio-4833, ¶ 22, once a permanent custody motion is filed
under R.C. 2151.413, the juvenile court is statutorily required under R.C. 2151414(A)(2) to
issue an order regarding the motion. The statute states the "court shall issue an order that
grants, denies, or otherwise disposes of the motion for permanent custody, and journalize
the order, not later than two hundred days after the agency files the motion." (Emphasis
added.) No such order was ever issued in this case—at least not until the court granted the
motion for permanent custody.
{¶ 24} Given the length of time the agency's motion had been pending and the
duration of the agency's temporary custody of J.C., if the option of permanent custody was
completely taken off the table at either the April or November 2019 hearings, the court
would have had a duty to issue a different order regarding J.C.'s custody pursuant to R.C.
Chapter 2151. But the issue of what that disposition would be remained under dispute at all
times relevant to J.M.'s claim—FCCS requested temporary custody to J.M. under COPS, the
GAL objected to return to J.M. and suggested either permanent custody to FCCS or legal
custody to J.C.'s foster mother, and J.C. herself was equivocal and undecided.
{¶ 25} Aside from these practical concerns, J.M.'s essential claim—that the trial
court lacked subject-matter jurisdiction to terminate her parental rights and grant
permanent custody of J.C. to FCCS—is both legally and logically false.
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No. 20AP-358
{¶ 26} First, subject-matter jurisdiction is a matter of the authority of courts to act
over a class of cases, not over a particular individual case. FCCS has correctly directed this
court to R.C. 2151.23(A)(1), which provides that the juvenile court "has exclusive original
jurisdiction under the Revised Code * * *. Concerning any child who on or about the date
specified in the complaint, indictment, or information is alleged * * * to be a juvenile traffic
offender or a delinquent, unruly, abused, neglected, or dependent child." (Emphasis
added.) As the Supreme Court of Ohio has held when addressing a similar question
regarding the subject-matter jurisdiction of juvenile courts:
Subject-matter jurisdiction connotes the power to hear and
decide a case upon its merits. The General Assembly
established the jurisdiction of juvenile courts and, in R.C.
2151.23(A)(1), granted them exclusive, original jurisdiction
concerning matters involving a neglected or dependent child.
This action, therefore, involving the permanent custody of [a
child] following a complaint alleging neglect, is within the
subject-matter jurisdiction of the juvenile court as specified in
R.C. 2151.23(A)(1).
(Emphasis added.) (Citations and quotations omitted.) In re J.J., 111 Ohio St.3d 205,
2006-Ohio-5484, ¶ 11. The court went on to distinguish subject-matter jurisdiction over a
class of cases from "jurisdiction over the case," which "involves the trial court's authority to
determine a specific case within that class of cases that is within its subject matter
jurisdiction." (Citations and quotations omitted.) Id. at ¶ 12. The court concluded that
where a court possesses subject-matter jurisdiction, to challenge a court's "jurisdiction over
the case" must "object in the trial court and timely preserve the error for appeal and the
distinction between subject-matter jurisdiction and jurisdiction over the particular case."
Id. at ¶ 15. It almost goes without saying that no such objection was lodged in this case; as
noted above, all parties proceeded at all times with the understanding that the trial court
had the authority to terminate J.M.'s parental rights and grant permanent custody of J.C.
to FCCS.
{¶ 27} Additionally, J.M.'s contention rests on the mistaken premise that the court's
authority over J.C.'s custody matters must be determined by whether a permanent custody
motion was filed. But as this court has already held, the authority of a juvenile court to grant
permanent custody in a case is not measured by the filing of a motion, but by the filing of a
complaint. See, e.g., In re L.H., 10th Dist. No. 06AP-23, 2006-Ohio-4116, ¶ 8 (holding that
14
No. 20AP-358
in an appeal of a permanent-custody order, "[t]he trial court acquired subject-matter
jurisdiction over this matter with the filing of a dependency complaint"). Permanent
custody is not a cause of action; rather, it is a disposition, albeit one with specific conditions
and procedural protections for the party whose parental rights are subject to termination.
As stated by R.C. 2151.353(A)(4):
If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition * * * [c]ommit the child to the permanent custody
of a public children services agency or private child placing
agency, if the court determines in accordance with division (E)
of section 2151.414 of the Revised Code that the child cannot be
placed with one of the child's parents within a reasonable time
or should not be placed with either parent and determines in
accordance with division (D)(1) of section 2151.414 of the
Revised Code that the permanent commitment is in the best
interest of the child. If the court grants permanent custody
under this division, the court, upon the request of any party,
shall file a written opinion setting forth its findings of fact and
conclusions of law in relation to the proceeding.
{¶ 28} R.C. 2151.353 is clear that the juvenile court has the authority to grant
permanent custody of a child to a public children services agency so long as the
requirements of R.C. 2151.414 are satisfied. In fact, the plain terms of R.C. 2151.353(C)
specifically permit a trial court to grant permanent custody to an agency without the filing
of a motion if "the complaint alleging the abuse, neglect, or dependency contains a prayer
requesting permanent custody * * * the summons served on the parents of the child
contains as is appropriate a full explanation that the granting of an order for permanent
custody permanently divests them of their parental rights * * * and the summons served on
the parents contains a full explanation of their right to be represented by counsel and to
have counsel appointed pursuant to Chapter 120 of the Revised Code if they are indigent."
See, e.g., In re Burkhart, 12th Dist. No. CA90-07-146 (Aug. 19, 1991) (holding that
temporary custody to a public children services agency is not a prerequisite to permanent
custody to the agency), and In re Z.D., 5th Dist. No. 12 CA 30, 2012-Ohio-3659, ¶ 4-5, ¶ 43
(affirming award of permanent custody to agency).
{¶ 29} While the filing of a motion by a public children services agency under R.C.
2151.413 is generally a predicate to a trial court's award of permanent custody under R.C.
2151.414, the issue is not one of the court's subject-matter jurisdiction, or even of the court's
15
No. 20AP-358
jurisdiction over the case. See, e.g., L.H. at ¶ 8 (holding that in an appeal of a permanent-
custody order, "[t]he trial court acquired subject-matter jurisdiction over this matter with
the filing of a dependency complaint"). Instead, the motion is simply a procedural due
process requirement that can be forfeited or waived under the proper circumstances. See,
e.g., Z.D. at ¶ 4-5, 43 (affirming permanent custody to agency without agency filing of
permanent custody motion and where agency opposed permanent custody). And here,
even if the actions of J.M. and her counsel in acquiescing to continuing the case, scheduling
a hearing on FCCS' motion, and failing to object to the trial court deciding that motion are
somehow deemed to not forfeit or waive the objection she now raises on appeal, it is beyond
dispute in the record that an independent motion for an award of permanent custody to
FCCS was filed prior to the April 1, 2018 hearing at which FCCS first indicated that it did
not intend to proceed on its own motion.
{¶ 30} In Stoll v. Crawford County Dept. of Job & Family Servs., 119 Ohio St.3d
494, 2008-Ohio-4570, the Supreme Court held that Chapter 2151 contains independent
authority permitting a GAL to file such a motion:
The role of the guardian ad litem * * * is to protect the interests
of the child. R.C. 2151.281(B)(1). The guardian ad litem must
"faithfully" discharge that duty. R.C. 2151.281(A) and (D). A
guardian ad litem is given wide latitude to carry out his or her
responsibilities on behalf of the child and may file any motion
necessary to protect the best interests of the child. R.C.
2151.281(I). In addition, R.C. 2151.415(F) specifically
authorizes the guardian ad litem to file a motion for any
dispositional order set forth in R.C. 2151.415(A), including
(A)(4), an order to terminate parental rights. Such an order is
equivalent to an order for permanent custody because once the
court orders parental rights terminated, permanent custody of
the child vests in the public children services agency.
Id. at ¶ 14. As noted above, the GAL's motion was withdrawn on the date of trial, and only
then because it was seen as "duplicative." (Feb. 20, 2020 Tr. at 5.) Therefore, even if FCCS'
motion were somehow considered withdrawn on April 1 or November 5, 2019, on the date
the case proceeded to trial the court still had before it a valid motion for permanent custody
upon which it was authorized to proceed. And it must be reiterated that no objections were
lodged at any point to the trial court's proceeding to judgment.
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No. 20AP-358
{¶ 31} In sum, the alleged error of which appellant complains was not preserved for
review by an objection, and even if the court's decision to proceed on FCCS' motion was
somehow erroneous (which is not clear from the record), it is not an error of which J.M.
herself can obtain relief as she failed to appear for trial. And given the unusual factual
circumstances of this case—the length of FCCS' custody, the prior denial of a permanent
custody motion, the subsequent filing of multiple permanent custody motions, and the
actions of both the parties and the trial court relating to the progress and decision on those
motions, that failure to appear and object to the court's determination of the motion is
significant. The trial court had both subject-matter jurisdiction pursuant to R.C.
2151.23(A)(1) and jurisdiction over the case pursuant to R.C. 2151.353(A)(4), and therefore
had the authority under Chapter 2151 to grant permanent custody of J.C. to FCCS. J.M.'s
first assignment of error is overruled.
{¶ 32} In her second assignment of error, J.M. argues the decision granting
permanent custody to FCCS was not supported by clear and convincing evidence. As
observed above, a court may grant permanent custody of a child to a public agency if, after
a hearing, it determines by clear and convincing evidence, that "(1) any of the circumstances
in R.C. 2151.414(B)(1)(a) through (d) exist, and (2) such relief is in the best interest of the
child." K.M. at ¶ 14.
{¶ 33} Here, review of the record reveals that the evidence was more than sufficient
to justify granting permanent custody to FCCS. J.C. was in agency custody for over 5 years
and out of [J.M.'s] custody for over 7 years, clearly satisfying R.C. 2151.414(B)(1)(d). She
was over 15 at the time of trial and did not want to return to [J.M.'s] custody. J.M. did not
complete her counseling, failed to complete her reunification plan, absconded with J.C. in
defiance of court orders, caused J.C. to miss school and required medical appointments for
serious medical conditions, missed numerous drug screens, was non-compliant with a
court order by having removed her SCRAM device some 3 months prior to trial, and failed
to appear at trial. For all these reasons, J.M. failed to demonstrate that she had fully
resolved her persistent substance abuse problems, which were the main conditions
requiring removal of J.C. from her care. J.C.'s need for a stable, permanent placement and
J.M.'s consistent inability to provide that placement are essentially beyond dispute in the
17
No. 20AP-358
record. The trial court's permanent custody judgment is supported by clear and convincing
evidence. J.M.'s second assignment of error therefore lacks merit and is overruled.
{¶ 34} J.M.'s third assignment of error contends the trial court erred at a hearing on
September 11, 2017, by granting FCCS' motion for an alternative disposition of temporary
custody.
{¶ 35} This alleged error relates to the court's action in permitting J.C.'s former
foster parents to relinquish legal custody of her and granting temporary custody back to the
agency without first determining that she could not be returned to the custody of J.M. On
March 20, 2017, FCCS was granted a temporary care order for J.C., and on June 2, 2017,
FCCS filed a motion for an alternative disposition of temporary custody over J.C., which
was granted by a magistrate and journalized on September 13, 2017. No objections were
filed to the magistrate's decision, and it was approved and adopted by the juvenile court.
{¶ 36} Whatever error J.M. alleges may have occurred when the trial court granted
this motion, she cannot raise it in this appeal. The September 13, 2017 order granting
temporary custody to the agency was final and appealable under R.C. 2505.02. See, e.g., In
re Murray, 52 Ohio St.3d 155 (1990), syllabus. Accordingly, pursuant to App.R. 4, any
appeal of this issue is untimely by some three and-one-half years. J.M.'s third assignment
of error is overruled.
{¶ 37} Finally, in her fourth assignment of error, J.M. contends the trial court erred
at the November 5, 2019 hearing by failing to dismiss both pending permanent custody
motions. J.M. contends that because both FCCS and the GAL made representations on the
record that they did not favor permanent custody at that time, the trial court should sua
sponte have dismissed their permanent custody motions. But this assignment of error must
be overruled for reasons that the trial court plainly articulated on the record:
Well, without any real evidence before the Court, I'm just
getting reports, we have very conflicting reports but the -- the
Agency's -- the caseworker is hearing -- not hearing the same
thing as the -- as the CASA Volunteer and [J.M.'s] position is
basically pretty much the same as what the Agency is saying,
that -- there's nothing that serious in regard to her health care.
I'm a little uncomfortable in making this decision without
actually hearing any evidence.
(Emphasis added.) (Nov. 5, 2019 Tr. at 45-46.) J.M. cites no caselaw to suggest that a trial
court should be reversed for cautious decision making. In fact, it strains credulity to think
18
No. 20AP-358
that a case supporting such an argument actually exists. In any event, the court's decision
to defer considering dismissal under these circumstances was undoubtedly within the wide
discretion that courts enjoy over their own proceedings. J.M.'s fourth assignment of error
wholly lacks merit.
IV. Conclusion
{¶ 38} We overrule all four of J.M.'s assignments of error and affirm the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgment affirmed.
DORRIAN, P.J, concuring in judgment only.
JAMISON J., concurring in part and dissenting in part.
DORRIAN, P.J., concurring in judgment only.
{¶ 39} I respectfully concur in judgment only with the lead opinion and would
overrule the first, second, third, and fourth assignments of error.
{¶ 40} I address in particular the limited reasons I would overrule the first
assignment of error.
{¶ 41} In In re Poling, 64 Ohio St.3d 211 (1992), the Supreme Court of Ohio
distinguished R.C. 2151.23(A) and 2151.353(A). The court held that R.C. 2151.23(A)
governs the jurisdiction of the juvenile court; whereas, R.C. 2151.353(A) involves the
disposition of abused, neglected, or dependent children and "list[s] [the] [six] ways in
which a juvenile court may determine the custody, care and supervision of the children."
Id. at 214. Pursuant to R.C. 2151.23(A)(1), "[t]he juvenile court has exclusive jurisdiction
* * * [c]oncerning any child who * * * specified in the complaint * * * is alleged * * * to be a
* * * abused, neglected or dependent child." Pursuant to R.C. 2151.353(A)(4), "[i]f a child
is adjudicated an abused, neglected, or dependent child, the court may make any of the
following [six] orders of disposition: * * * [c]ommit the child to the permanent custody of a
public children services agency."
{¶ 42} The issue before us in the first assignment of error is whether the juvenile
court had subject-matter jurisdiction. In In re: J.J., 111 Ohio St.3d 205, 2006-Ohio-5484,
¶ 11, the Supreme Court held: "Subject-matter jurisdiction 'connotes the power to hear and
19
No. 20AP-358
decide a case upon its merits.' Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87. The
General Assembly established the jurisdiction of juvenile courts and, in R.C. 2151.23(A)(1),
granted them exclusive, original jurisdiction concerning matters involving a neglected or
dependent child." The court further held, that the action before it, involving the permanent
custody of J.J. following a complaint alleging neglect, was within the subject-matter
jurisdiction of the juvenile court as specified in R.C. 2151.23(A)(1) and, therefore, the
juvenile court's decision and entry awarding PCC to the agency was not void.
{¶ 43} Consistent with the Supreme Court's holdings in Poling and J.J., I concur in
judgment only with the lead opinion and would hold that the juvenile court had subject-
matter jurisdiction, pursuant to R.C. 2151.23(A)(1), to preside over the neglect and
dependency complaint involving J.C. and, once J.C. was adjudicated dependent, to
consider which order of the six orders of disposition listed in R.C. 2151.353(A) to impose.
Accordingly, I would overrule the first assignment of error.
{¶ 44} I also address why I reject appellant's argument in support of her second
assignment of error—that there was no lawfully pending PCC motion when the trial court
awarded PCC of J.C. to FCCS. The issue here is whether the juvenile court properly ordered
disposition of the case once J.C. was adjudicated a neglected and dependent child.
{¶ 45} The General Assembly has limited a juvenile court's exercise of the
disposition outlined in R.C. 2151.353(A)(4), committing a child to the permanent custody
of a public children services agency. R.C. 2151.353(C), in relevant part, states:
No order for permanent custody * * * of a child * * * shall be
made pursuant to this section unless the complaint alleging
the abuse, neglect, or dependency contains a prayer
requesting permanent custody * * *.
If after making disposition as authorized by division (A)(2) of
this section [temporary custody], a motion is filed that
requests permanent custody of the child, the court may grant
permanent custody of the child to the movant in accordance
with section 2151.414 of the Revised Code.
(Emphasis added.)
{¶ 46} Therefore, in order for a juvenile court to order the disposition of permanent
custody, it must have pending before it either: (1) a prayer requesting permanent custody
included in the abuse, neglect, or dependency complaint, or (2) a motion requesting
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No. 20AP-358
permanent custody filed after the court has ordered a disposition of temporary custody.
The juvenile court cannot sua sponte order a disposition of permanent custody. Here, while
the complaint alleging neglect and dependency did not contain a prayer requesting
permanent custody, after the trial court made a disposition pursuant to R.C. 2151.353(A)(2)
committing the child to the temporary custody of FCCS, FCCS filed a motion requesting
permanent custody of the child.
{¶ 47} On the facts of this case, as outlined in the lead opinion's discussion of factual
and procedural background and paragraph 22, I cannot agree with appellant that no
lawfully pending PCC motion was pending when the juvenile court ordered the disposition
of permanent custody to FCCS. I further consider that pursuant to R.C. 2151.414(A)(2),
the juvenile court was required to "issue an order that grants, denies, or otherwise disposes
of the motion for permanent custody, and journalize the order," and the only order the
juvenile court issued was the order to grant FCCS' PCC motion. Finally, I note that the
GAL's PCC motion was still pending.
{¶ 48} Therefore, I concur in judgment only and would affirm the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
JAMISON, J. concurring in part and dissenting in part.
{¶ 49} I concur in lead opinion as to the third assignment of error. I disagree,
however, with the disposition of appellant's second and fourth assignments of error as I
believe the juvenile court lacked jurisdiction to grant PCC. Accordingly, I would sustain
appellant's first and fourth assignments of error and moot appellant's second assignment
of error. Because the lead opinion does not, I respectfully concur in part and dissent in part.
{¶ 50} First and foremost, I disagree with the conclusion that a pending motion for
PCC is a matter of personal jurisdiction that may be waived by the parties rather than a
requirement of subject-matter jurisdiction. I also disagree with the concurring opinion that
a motion for PCC was pending before the juvenile court at the time the juvenile court
ordered PCC. I am also concerned that the rule of law adopted by both the lead opinion and
the concurring opinion permits the juvenile court to grant PCC to a public services agency
even though the agency has informed the juvenile court that the stated grounds for PCC no
longer exist and that PCC is not in the best interest of the child.
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No. 20AP-358
{¶ 51} As a general rule, "in order to render a valid personal judgment, a court must
have personal jurisdiction over the defendant. This may be acquired either by service of
process upon the defendant, the voluntary appearance and submission of the defendant or
his legal representative, or by certain acts of the defendant or his legal representative which
constitute an involuntary submission to the jurisdiction of the court. The latter may more
accurately be referred to as a waiver of certain affirmative defenses, including jurisdiction
over the person under the Rules of Civil Procedure." Maryhew v. Yova, 11 Ohio St.3d 154,
156 (1984).
{¶ 52} Conversely, " '[s]ubject-matter jurisdiction of a court connotes the power to
hear and decide a case upon its merits' " and " 'defines the competency of a court to render
a valid judgment in a particular action.' " Cheap Escape Co., Inc. v. Haddox, L.L.C., 120
Ohio St.3d 493, 2008-Ohio-6323, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 86(1972). "[G]eneral subject-matter jurisdiction of Ohio courts of common pleas is defined
entirely by statute pursuant to Section 4(B), Article IV of the Ohio Constitution, which
states that 'the courts of common pleas and divisions thereof shall have such original
jurisdiction over all justiciable matters * * * as may be provided by law.' " State v. Wilson,
73 Ohio St.3d 40, 42 (1995). The General Assembly created Ohio's juvenile courts as a
division of the courts of common pleas by the enactment of R.C. 2151.07. R.C. 2151.23 sets
forth the general jurisdiction of juvenile courts in relevant part as follows:
(A) The juvenile court has exclusive original jurisdiction
under the Revised Code:
(1) Concerning any child who on or about the date specified in
the complaint * * * is alleged to be * * * a delinquent * * * child.
{¶ 53} It is axiomatic that "[t]he exclusive subject-matter jurisdiction of the juvenile
court cannot be waived." Wilson at paragraph two of the syllabus, citing State v. Hicks,
10th Dist. No. 13AP-429, 2014-Ohio-1444, ¶ 9. Involuntary submission to the jurisdiction
of the juvenile court by any party or the lack of prejudice to the juvenile does not waive the
exclusive, subject-matter jurisdiction of a juvenile court. See State v. Baker, 7th Dist. No.
16 CO 0024, 2017-Ohio-7795, ¶ 21, citing Wilson. By the same token, "[a] party's failure to
challenge a [juvenile] court's subject-matter jurisdiction cannot be used, in effect, to bestow
jurisdiction on a court where there is none." Wilson at ¶ 46, citing Rogers v. Ohio, 87 Ohio
St. 308 (1913), at paragraph one of the syllabus. See also Hicks at ¶ 9.
22
No. 20AP-358
{¶ 54} The lead opinion concludes that no objection was made in mother's absence
by mother's counsel therefore the juvenile court had subject-matter jurisdiction to proceed.
I disagree. As a matter of law, subject-matter jurisdiction cannot be conferred by consent
or agreement. In matters involving child custody, "[p]arties cannot confer by consent or
agreement subject-matter jurisdiction on a court where subject-matter jurisdiction is
otherwise lacking." In re Weller, 10th Dist. No. 05AP-678, 2006-Ohio-3015, ¶ 14, citing Fox
v. Eaton Corp. 48 Ohio St.2d 236, 238 (1976), overruled on other grounds, Manning v.
Ohio State Library Bd., 62 Ohio St.3d 24 (1991).
{¶ 55} Juvenile court jurisdiction of PCC determinations arises under R.C.
2151.353(A), which authorizes the juvenile court to "[c]ommit [a] child to the temporary
custody of * * * [a] public children services agency" when the child is "adjudicated an
abused, neglected, or dependent child." R.C. 2151.353(A)(2). R.C. 2151.353(C) further
provides, in relevant part:
No order for permanent custody or temporary custody of a
child or the placement of a child in a planned permanent living
arrangement shall be made pursuant to this section unless the
complaint alleging the abuse, neglect, or dependency contains
a prayer requesting permanent custody
***
If after making disposition as authorized by division (A)(2) of
this section, a motion is filed that requests permanent custody
of the child, the court may grant permanent custody of the
child to the movant in accordance with section 2151.414 of the
Revised Code.
(Emphasis added.)
{¶ 56} "As a statutory court, the juvenile court has limited jurisdiction, and it can
exercise only the authority conferred upon it by the General Assembly." In re Z.R., 144
Ohio St.3d 380, 2015-Ohio-3306,¶ 14, citing State ex rel. Ramey v. Davis, 119 Ohio St. 596(1929), paragraph four of the syllabus. Under the statutory scheme, the juvenile court has
jurisdiction to grant a motion filed by a public children services agency for permanent
custody of an abused, neglected, or dependent child, but only "if * * * a motion is filed that
requests permanent custody of the child." (Emphasis added.) R.C. 2151.353(C). In my
view, the statutory jurisdictional requirements are clear. In order for the juvenile court to
23
No. 20AP-358
have jurisdiction to hear and determine whether permanent custody of a child should be
granted to an agency, a pending motion for PCC filed pursuant to R.C. 2151.414(A) is
required. In the absence of such a motion, a juvenile court lacks jurisdiction to order PCC.
{¶ 57} In reaching this conclusion, I find it significant that the General Assembly, in
enacting R.C. 2151.414(A)(2), expressly provided that "failure of the court to comply with
the time periods set forth in division (A)(2) * * * does not affect the authority of the court
to issue any order under this chapter and does not provide any basis for attacking the
jurisdiction of the court or the validity of any order." By implication, the intent of the
General Assembly in enacting R.C. 2151.414(A)(2) is that other substantive provisions in
the statute are to be treated as jurisdictional in nature, including the filing and pendency of
a motion for PCC. This means that an order of permanent custody would be subject to
collateral attack on jurisdictional grounds if it were made in the absence of a pending
motion for PCC. I do not perceive any other reasonable construction of the statutory
language.
{¶ 58} Here the agency invoked the jurisdiction of the juvenile court to grant PCC
when it filed the required motion on February 12, 2018. Though the lead opinion concludes
that "the record as to withdrawal of the motion is far more equivocal than J.M. suggests,"
my reading of the April 1, 2019 transcript reveals no such equivocation on the part of FCCS.
(Lead opinion at ¶ 22.) The transcript of the April 1, 2019 hearing reads in relevant part as
follows:
[THE COURT]: We're on the record; 13JU-6011, the matter
of [J.C.] case was assigned for hearing on the Agency's motion
for permanent custody filed February 12, 2018. Recently, on
March 28, 2019 the CASA Guardian ad Litem filed a motion
for permanent custody. An in-camera was scheduled for 9
o'clock.
***
[FCCS COUNSEL]: Thank you, Your Honor. At this point in
time my client, Franklin County Children Services, wants to
withdrawal the motion for permanent custody that the Agency
filed on February 12, 2018 based on mother's case plan
compliance and what my Agency believes to be in the best
interest of the child. The Agency has seen a -- a real
turnaround as far as mother's stability in housing and
employment, as well as her compliance with random urine
screens. Although her results certainly aren't perfect, she's
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No. 20AP-358
still not doing 100 percent of her urine screens, every one she's
done since we were last here for a pre-trial in January has
been clean. And she's completed something like 60 percent of
all the screens since we were here January 10th. So, at this
point in time, the Agency would ask the Court to withdrawal
the motion for permanent custody, terminate temporary
custody to the Agency with a COPS order.
(Emphasis added.) (Apr. 1, 2019 Tr. at 3.)
{¶ 59} When the subject of FCCS's desire to prosecute the motion for PCC came up
later in the proceedings, counsel for FCCS told the court that she had previously informed
the GAL that FCCS intended to withdraw the motion, but that "I didn't give him a definitive
answer until probably last week." (Apr. 1, 2019 Tr. at 14.) Counsel then told the juvenile
court, once again, FCCS wished to withdraw the PCC motion and its reason for doing so:
[FCCS COUNSEL]: - I gave him [GAL] a definitive answer. But
I would just like to point out, Your Honor, the last time mother
actually tested positive for alcohol was July of 2018. After that
she did have a screen that was deemed positive in September
of 2018 because the creatinine was out of range. But since then
she hasn't had anything but negative or missed screens. And
this is a really unusual position for me to be in, Your Honor,
and the Agency advocating on behalf of a parent against the
Guardian ad Litem, but because of the child's wishes, because
of the kinda (sic) turnaround in mom's case plan compliance,
it's still not perfect, I wish it was better. The Agency is asking
to withdrawal the motion.
(Emphasis added.) (Apr. 1, 2019 Tr. at 14.)
{¶ 60} Counsel for FCCS clearly and unequivocally informed the juvenile court on
April 1, 2019, FCCS had elected to withdraw the February 12, 2018, motion for PCC because
of mother's recent "turnaround" and "compliance" with the case plan. (Apr. 1, 2019 Tr. at
14.) The record of the April 1, 2019 hearing therefore establishes that FCCS no longer
believed the stated grounds for PCC existed and PCC was not in the best interest of J.C. The
fact that the GAL filed a motion for PCC on March 28, 2019 further evidences the agency's
intentions regarding PCC. FCCS subsequently informed the juvenile court of its continued
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No. 20AP-358
desire to withdraw the motion for PCC at hearings held on September 12, 2019 and
November 5, 2019.1
{¶ 61} As the lead opinion correctly observes, "the proponent of a motion is
generally not required to seek leave prior to withdrawing the motion." Byers v. Robinson,
10th Dist. No. 08AP-204, 2008-Ohio-4833, ¶ 22. Appellee has not cited any provision in
R.C. Chapter 2151 that expressly requires the agency to obtain court approval before
withdrawing a motion for PCC, and no such provision has been cited by the lead opinion.
Thus, the record establishes that the February 12, 2018, motion for PCC was no longer
pending.
{¶ 62} The lead opinion relies on In re Z.D., for the proposition that the filing of a
PCC motion by the agency, pursuant to R.C. 2151.413, may be waived or forfeited. However,
the facts of In re Z.D. are materially different from this case and a different result is
required. In that case, the agency did not file a PCC motion, but the GAL did, and that
motion was pending in the juvenile court when the juvenile court granted permanent
custody to the agency. Id. Here, FCCS withdrew the February 12, 2018 motion for PCC on
April 1, 2019, and the GAL withdrew his March 28, 2019, motion for PCC during his
opening statement at the permanent custody hearing. Thus, there was no motion for PCC
pending in the juvenile court when the juvenile court committed J.C. to the permanent
custody of FCCS. Because there was no motion for PCC pending in the juvenile court when
the juvenile court committed J.C. to the custody of FCCS, the juvenile court acted without
jurisdiction.
{¶ 63} Based on the foregoing, I would find that the juvenile court acted without
subject-matter jurisdiction on March 13, 2020, when it granted a motion for PCC that had
been withdrawn, and I would sustain appellant's first assignment of error.
{¶ 64} Both the lead opinion and the concurring opinion nevertheless conclude that
the motion for PCC was not withdrawn on April 1, 2019 because the juvenile court did not
issue an order disposing of the motion. I disagree.
{¶ 65} In my opinion, R.C. 2151.414(A)(2) imposes a duty on the juvenile court to
acknowledge withdrawal of the February 12, 2018 motion and issue a timely order
1On September 12, 2019, counsel for FCCS informed the court " * * * I feel confident as everyone does here
that PCC is not what's in [J.C.'s] best interest." (Sept. 12, 2019 Tr. at 79.)
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No. 20AP-358
disposing of the motion. In fact, the record shows that this is exactly what the juvenile court
did when the GAL withdrew his motion for PCC. During the GAL's opening statement, the
GAL withdrew his motion for PCC:
[GAL]: I am -- I am withdrawing the motion for legal custody,
Your Honor, and with Children Services going forward on
their motion for permanent custody[.] I would also
withdrawal the Guardian's motion for permanent custody as
it's duplicative.
(Feb. 26, 2020 at Tr. at 26.)
{¶ 66} In the March 13, 2020 judgment entry, the juvenile court disposed of the
GAL's motion for permanent custody as follows: "The March 28, 2019, motion for
permanent custody and the December 4, 2019, motion to grant legal custody of [J.C.] to
the child's foster mother filed by CASA of Franklin County are dismissed." (Emphasis
added.)
{¶ 67} The juvenile court recognized its statutory duty to dispose of the GAL's PCC
motion, upon withdrawal, and disposed of the motion by dismissal. Had the juvenile court
acknowledged that counsel for FCCS withdrew FCCS's motion for PCC on April 1, 2019 and
timely issued an order disposing of the motion, as it was required to do, the confusion that
resulted in the subsequent withdrawal of the GAL's motion for PCC could have been
avoided. Accordingly, I find that the juvenile court committed reversible error when it
failed to timely dispose of the motion for PCC filed by FCCS, and I would sustain appellant's
fourth assignment of error.
{¶ 68} "As the right to raise and nurture one's children is fundamental, statutory
conditions which serve to overcome that right must be strictly construed." In re Janson,
11th Dist. No. 2005-G-2656, 2005-Ohio-6712, ¶ 34, citing In re Cunningham 59 Ohio St.2d
100 (1979). The general assembly, in enacting Chapter 2151 of the Ohio Revised Code, has
recognized the need to preserve and safeguard parental rights. R.C. 2151.01 specifically
requires Chapter 2151 be "interpreted and construed so as to effectuate * * * purposes of
provid[ing] for the care, protection, and mental and physical development of children * * *
in a family environment, separating the child from the child's parents only when necessary
for the child's welfare or in the interests of public safety."
{¶ 69} In my view, the rule of law adopted by the lead opinion is inconsistent with
the dictates of R.C. 2151.01 because it permits the juvenile court to grant PCC to a public
27
No. 20AP-358
services agency even though the agency has informed the juvenile court that it no longer
believes the stated grounds for PCC exist and PCC is not in the best interest of the child. It
does not require a great deal of imagination to foresee that a juvenile court, a GAL, or a
public or private children services agency might take advantage of such a legal rule to
unfairly delay reunification even though the party that moved for PCC no longer believes
that the stated grounds for PCC exist and that PCC is not in the child's best interest. In a
case where reunification is in the best interest of a child, a matter of months is an eternity.
{¶ 70} For the foregoing reasons, I would sustain appellant's first and fourth
assignments of error, moot appellant's second assignment of error, and overrule appellant's
third assignment. I would reverse the judgment of the Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch, and vacate the judgment granting
PCC to FCCS. Because the lead opinion does not, I concur in the lead opinion in part and
dissent in part.
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