In re A.H.

2014 Ohio 1929

Opinion

[Cite as In re A.H., 2014-Ohio-1929.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: : : Hon. John W. Wise, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. IN RE A.H. : : Case No. CT2013-0051 : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Division, Case No. 21230177

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY: May 5, 2014

APPEARANCES:

For Plaintiff-Appellee: For Mother: JOHN D. WEAVER MARIA N. KALIS 542 S. Drexel Ave. Assistant Prosecuting Attorney Bexley, OH 43209 27 North Fifth Street P.O. Box 189 For Maternal Grandmother: Zanesville, OH 43702-0189 ROSE FOX 223 Main St. Guardian ad Litem: Zanesville, OH 43701 VINCENT RUSSO 44 S. 6th St. For Father: Zanesville, OH 43701 FREDRICK SEALOVER 45 N. Fourth St. For MMCS: Zanesville, OH 43701 MOLLY MARTIN 27 N. 5th St. For Paternal Aunt: Zanesville, OH 43701 DREMA BOGART P.O. Box 30402 Gahanna, OH 43230 Muskingum County, Case No. CT2013-0051 2

Delaney, J.

{¶1} Mother appeals the September 23, 2013 judgment entry of the

Muskingum County Court of Common Pleas, Juvenile Division.

FACTS AND PROCEDURAL HISTORY

{¶2} A.H. was born on September 11, 2012 to Mother. Muskingum County

Children Services (“MCCS”) became involved with the family at A.H.’s birth because the

child tested positive for Hydrocodone at birth. A.H. was placed in the care of the child’s

Maternal Grandmother.

{¶3} The trial court appointed a Guardian ad Litem for A.H. on January 3, 2013.

On that same day, MCCS filed a complaint requesting the trial court declare A.H.

neglected and dependant. A shelter care hearing was held on January 4, 2013 and A.H.

was placed in the temporary custody of Maternal Grandmother.

{¶4} On February 21, 2013, Paternal Aunt filed a Motion to be Made a Party

upon Disposition and a Motion for Legal Custody, or alternatively, Temporary Custody.

The trial court granted the motion to be made a party upon disposition.

{¶5} An adjudicatory hearing was held on March 20, 2013, where A.H. was

adjudicated a neglected and dependent child. The trial court next held the dispositional

hearing where A.H. was placed in the temporary custody of Maternal Grandmother

under the protective supervision of MCCS.

{¶6} Maternal Grandmother filed a Motion for Legal Custody on April 16, 2013.

{¶7} The trial court held a hearing on the motions for legal custody on

September 17, 2013. The trial court issued its judgment entry on September 23, 2013. Muskingum County, Case No. CT2013-0051 3

The trial court granted legal custody of A.H. to Paternal Aunt. Maternal Grandmother

was awarded visitation of A.H. Protective supervision by MCCS of A.H. was terminated.

{¶8} It is from this decision Mother now appeals.

ASSIGNMENTS OF ERROR

{¶9} Mother raises two Assignments of Error:

{¶10} “I. THE TRIAL COURT ERRED IN AWARDING LEGAL CUSTODY

WITHOUT FINDING THAT REASONABLE EFFORTS HAS BEEN TAKEN TO

PREVENT THE CONTINUED REMOVAL OF A.H.

{¶11} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING IT

WAS IN THE BEST INTERESTS OF A.H. TO AWARD LEGAL CUSTODY TO

[PATERNAL AUNT].”

ANALYSIS

I.

{¶12} Mother argues in her first Assignment of Error that the trial court erred in

not entering the specific findings of fact as required under R.C. 2151.419(B)(1). Upon

the authority of this Court’s previous decision in In re B.G., 5th Dist. Muskingum No.

CT2013-0033, 2014-Ohio-409, we agree.

{¶13} R.C. 2151.419 governs hearings on efforts of agencies to prevent removal

of children from homes. Subsection (A)(1) states the following:

Except as provided in division (A)(2) of this section, at any hearing

held pursuant to section 2151.28, division (E) of section 2151.31, or

section 2151.314, 2151.33, or 2151.353 of the Revised Code at which the

court removes a child from the child's home or continues the removal of a Muskingum County, Case No. CT2013-0051 4

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 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. The agency shall have the

burden of proving that it has made those reasonable efforts. If the agency

removed the child from home during an emergency in which the child

could not safely remain at home and the agency did not have prior contact

with the child, the court is not prohibited, solely because the agency did

not make reasonable efforts during the emergency to prevent the removal

of the child, from determining that the agency made those reasonable

efforts. In determining whether reasonable efforts were made, the child's

health and safety shall be paramount.

{¶14} Subsection (B)(1) states the following:

A court that is required to make a determination as described in

division (A)(1) or (2) 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 Muskingum County, Case No. CT2013-0051 5

the removal of the child from the child's home or enable the child to return

safely home.

{¶15} There is no dispute that the September 23, 2013 judgment entry granting

legal custody to Paternal Aunt does not contain a brief description in the findings of fact

as to 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.

{¶16} Pursuant to In re B.G. supra and In re Kyle, 5th Dist. Tuscarawas No.

2008 AP 01 0002, 2008-Ohio-5892, we reverse the trial court’s September 23, 2013

judgment entry for the trial court’s failure to address in writing the reasonable efforts of

the agency as required by R.C. 2151.419.

{¶17} The first Assignment of Error is sustained.

II.

{¶18} Based upon our opinion in the first Assignment of Error, the second

Assignment of Error is premature. Muskingum County, Case No. CT2013-0051 6

CONCLUSION

{¶19} The judgment of the Muskingum County Court of Common Pleas, Juvenile

Division is reversed and remanded for further proceedings consistent with this opinion

and law.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.