[Cite as In re A.S., 2020-Ohio-5186.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE A.S. :
A Minor Child : No. 109292
[Appeal by Cuyahoga County Division of Children and Family Services] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 5, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 18901106
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Adam R. Waller, Assistant Prosecuting Attorney, for appellant.
Thomas Rein, for appellee, mother.
SEAN C. GALLAGHER, P.J.:
Appellant Cuyahoga County Division of Children and Family
Services (“CCDCFS” or “the agency”) appeals the decision of the Cuyahoga
County Court of Common Pleas, Juvenile Division (“juvenile court”), that terminated the order of temporary custody and dismissed the action. Upon
review, we reverse the decision of the juvenile court and remand the matter for
the juvenile court to conduct a hearing and enter a dispositional order in
accordance with the best interest of the child.
On January 25, 2018, CCDCFS filed a complaint for neglect and
dependency due to concerns regarding the child’s mother with inadequate
housing, mental health, substance abuse, and anger management. The child
was adjudicated neglected and dependent and was committed to the temporary
custody of CCDCFS. CCDCFS claims that mother did not comply with case plan
objectives, failed to follow through with recommendations, and did not
consistently visit the child.
In October 2018, CCDCFS filed a motion to modify temporary
custody to permanent custody, but later withdrew the request. In July 2019,
CCDCFS filed a motion for an extension of temporary custody. The juvenile
court extended temporary custody until November 19, 2019. The matter was
set for a review hearing on October 23, 2019, but the hearing was continued
because CCDCFS had not filed a dispositional motion. The juvenile court
continued the matter “to allow the Agency to hold a staffing and file a timely
post dispositional motion.”
A hearing was held on November 18, 2019, at which time CCDCFS
had yet to file a dispositional motion. The assistant prosecuting attorney, counsel for the child’s mother, the social worker, the guardian ad litem for the
mother, and the guardian ad litem for the child were present at the hearing.
The juvenile court magistrate noted the agency still had not filed a post-
dispositional motion and indicated that “there’s no sense of urgency on the part
of the Agency to comport with the statute.” CCDCFS acknowledged that the
agency’s actions were not in the best interest of the child and conceded that no
motion had been filed due to “[a] serious oversight.” The magistrate determined
that the order of temporary custody would terminate, that the case expired by
operation of law, and that the case was closed. Although CCDCFS filed a motion
to modify temporary custody to permanent custody after the hearing occurred,
the motion was deemed moot. CCDCFS filed objections to the magistrate’s
decision.
Thereafter, the juvenile court issued a decision that overruled the
objections and adopted the magistrate’s decision. The juvenile court made
findings consistent with the record, determined that the matter expired by
operation of law on November 19, 2019, and terminated the order of temporary
custody.
CCDCFS has appealed the juvenile court’s decision. It raises
three assignments of error that claim the juvenile court erred by (1) dismissing
the case prior to the sunset date when appellant filed a timely motion, (2) failing
to take into consideration the best interest of the child and to issue an appropriate dispositional order as required by law, and (3) dismissing
CCDCFS’s motion to modify temporary custody to permanent custody.
CCDCFS argues that the juvenile court’s decision terminating temporary
custody of the child is contrary to R.C. 2151.415(D)(2) and (3) and established
case law, that the juvenile court’s decision should be reversed, and that
CCDCFS’s motion to modify temporary custody to permanent custody should be
reinstated for further hearing.
R.C. 2151.353 sets forth the orders of disposition that may be
made when a child is adjudicated an abused, neglected, or dependent child. In
this case, the child was committed to the temporary custody of CCDCFS. R.C.
2151.353(G) establishes the “sunset date” upon which such an order shall
terminate and provides, in pertinent part, as follows:
Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary order shall continue and not terminate until the court issues a dispositional order under that section.
R.C. 2151.415(A) sets forth six dispositional orders that may be
issued prior to the termination of the temporary custody order. With the
exception of cases in which a motion for permanent custody described in R.C.
2151.413(D)(1) is required to be made, R.C. 2151.415(A) instructs that a public
children services agency that has been given temporary custody of a child pursuant to R.C. 2151.353 must file a motion “not later than thirty days prior
to the earlier of the date for the termination of the custody order * * * or the date
set at the dispositional hearing for the hearing to be held pursuant to this
section” that requests one of the listed orders of disposition be issued by the
court. Among the other orders of disposition that may be requested are “[a]n
order permanently terminating the parental rights of the child’s parents” and
“[a]n order for the extension of temporary custody” in accordance with R.C.
2151.415(D). R.C. 2151.415(A)(4) and (6).
Upon the filing of a motion pursuant to R.C. 2151.415(A), the
juvenile court is required to hold a dispositional hearing pursuant to R.C.
2151.415(B) and is required “in accordance with the best interest of the child as
supported by the evidence presented at the dispositional hearing” to issue an
order of disposition. R.C. 2151.415(B).
If, in accordance with R.C. 2151.415(D)(1), the court extends the
temporary custody order of the child for a period of up to six months, then
pursuant to R.C. 2151.415(D)(2), the agency is to file a motion for a dispositional
order prior to the expiration of the extension period. However, R.C.
2151.415(D)(2) further provides that whether the agency requests an order or
disposition “or does not file any motion prior to the expiration of the extension
period, the court shall conduct a hearing in accordance with division (B) of this section and issue an appropriate order of disposition.” (Emphasis added.) See
also R.C. 2151.415(D)(3) (similarly worded).
In this case, temporary custody of the child was extended to
November 19, 2019. Although CCDCFS had not filed a motion prior to the
hearing set for November 18, 2019, pursuant to R.C. 2151.415(D)(2) and (3), the
juvenile court was required to conduct a hearing in conformity with R.C.
2151.415(B) and issue an appropriate order of disposition in accordance with the
best interest of the child.
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[Cite as In re A.S., 2020-Ohio-5186.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE A.S. :
A Minor Child : No. 109292
[Appeal by Cuyahoga County Division of Children and Family Services] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 5, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 18901106
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Adam R. Waller, Assistant Prosecuting Attorney, for appellant.
Thomas Rein, for appellee, mother.
SEAN C. GALLAGHER, P.J.:
Appellant Cuyahoga County Division of Children and Family
Services (“CCDCFS” or “the agency”) appeals the decision of the Cuyahoga
County Court of Common Pleas, Juvenile Division (“juvenile court”), that terminated the order of temporary custody and dismissed the action. Upon
review, we reverse the decision of the juvenile court and remand the matter for
the juvenile court to conduct a hearing and enter a dispositional order in
accordance with the best interest of the child.
On January 25, 2018, CCDCFS filed a complaint for neglect and
dependency due to concerns regarding the child’s mother with inadequate
housing, mental health, substance abuse, and anger management. The child
was adjudicated neglected and dependent and was committed to the temporary
custody of CCDCFS. CCDCFS claims that mother did not comply with case plan
objectives, failed to follow through with recommendations, and did not
consistently visit the child.
In October 2018, CCDCFS filed a motion to modify temporary
custody to permanent custody, but later withdrew the request. In July 2019,
CCDCFS filed a motion for an extension of temporary custody. The juvenile
court extended temporary custody until November 19, 2019. The matter was
set for a review hearing on October 23, 2019, but the hearing was continued
because CCDCFS had not filed a dispositional motion. The juvenile court
continued the matter “to allow the Agency to hold a staffing and file a timely
post dispositional motion.”
A hearing was held on November 18, 2019, at which time CCDCFS
had yet to file a dispositional motion. The assistant prosecuting attorney, counsel for the child’s mother, the social worker, the guardian ad litem for the
mother, and the guardian ad litem for the child were present at the hearing.
The juvenile court magistrate noted the agency still had not filed a post-
dispositional motion and indicated that “there’s no sense of urgency on the part
of the Agency to comport with the statute.” CCDCFS acknowledged that the
agency’s actions were not in the best interest of the child and conceded that no
motion had been filed due to “[a] serious oversight.” The magistrate determined
that the order of temporary custody would terminate, that the case expired by
operation of law, and that the case was closed. Although CCDCFS filed a motion
to modify temporary custody to permanent custody after the hearing occurred,
the motion was deemed moot. CCDCFS filed objections to the magistrate’s
decision.
Thereafter, the juvenile court issued a decision that overruled the
objections and adopted the magistrate’s decision. The juvenile court made
findings consistent with the record, determined that the matter expired by
operation of law on November 19, 2019, and terminated the order of temporary
custody.
CCDCFS has appealed the juvenile court’s decision. It raises
three assignments of error that claim the juvenile court erred by (1) dismissing
the case prior to the sunset date when appellant filed a timely motion, (2) failing
to take into consideration the best interest of the child and to issue an appropriate dispositional order as required by law, and (3) dismissing
CCDCFS’s motion to modify temporary custody to permanent custody.
CCDCFS argues that the juvenile court’s decision terminating temporary
custody of the child is contrary to R.C. 2151.415(D)(2) and (3) and established
case law, that the juvenile court’s decision should be reversed, and that
CCDCFS’s motion to modify temporary custody to permanent custody should be
reinstated for further hearing.
R.C. 2151.353 sets forth the orders of disposition that may be
made when a child is adjudicated an abused, neglected, or dependent child. In
this case, the child was committed to the temporary custody of CCDCFS. R.C.
2151.353(G) establishes the “sunset date” upon which such an order shall
terminate and provides, in pertinent part, as follows:
Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary order shall continue and not terminate until the court issues a dispositional order under that section.
R.C. 2151.415(A) sets forth six dispositional orders that may be
issued prior to the termination of the temporary custody order. With the
exception of cases in which a motion for permanent custody described in R.C.
2151.413(D)(1) is required to be made, R.C. 2151.415(A) instructs that a public
children services agency that has been given temporary custody of a child pursuant to R.C. 2151.353 must file a motion “not later than thirty days prior
to the earlier of the date for the termination of the custody order * * * or the date
set at the dispositional hearing for the hearing to be held pursuant to this
section” that requests one of the listed orders of disposition be issued by the
court. Among the other orders of disposition that may be requested are “[a]n
order permanently terminating the parental rights of the child’s parents” and
“[a]n order for the extension of temporary custody” in accordance with R.C.
2151.415(D). R.C. 2151.415(A)(4) and (6).
Upon the filing of a motion pursuant to R.C. 2151.415(A), the
juvenile court is required to hold a dispositional hearing pursuant to R.C.
2151.415(B) and is required “in accordance with the best interest of the child as
supported by the evidence presented at the dispositional hearing” to issue an
order of disposition. R.C. 2151.415(B).
If, in accordance with R.C. 2151.415(D)(1), the court extends the
temporary custody order of the child for a period of up to six months, then
pursuant to R.C. 2151.415(D)(2), the agency is to file a motion for a dispositional
order prior to the expiration of the extension period. However, R.C.
2151.415(D)(2) further provides that whether the agency requests an order or
disposition “or does not file any motion prior to the expiration of the extension
period, the court shall conduct a hearing in accordance with division (B) of this section and issue an appropriate order of disposition.” (Emphasis added.) See
also R.C. 2151.415(D)(3) (similarly worded).
In this case, temporary custody of the child was extended to
November 19, 2019. Although CCDCFS had not filed a motion prior to the
hearing set for November 18, 2019, pursuant to R.C. 2151.415(D)(2) and (3), the
juvenile court was required to conduct a hearing in conformity with R.C.
2151.415(B) and issue an appropriate order of disposition in accordance with the
best interest of the child.
As the Supreme Court of Ohio has held, although temporary
custody is terminated upon the passing of the sunset date when no motion is
filed pursuant to R.C. 2151.415(A), “the passing of the sunset date * * * does not
divest juvenile courts of jurisdiction to enter dispositional orders.” In re Young,
76 Ohio St.3d 632, 637, 1996-Ohio-45, 669 N.E.2d 1140. Moreover, “because the
court retains jurisdiction over the child, it may make further dispositional
orders as it deems necessary to protect the child” and where “the problems that
led to the original grant of temporary custody have not been resolved or
sufficiently mitigated, courts have the discretion to make a dispositional order
in the best interests of the child.” Id. at 638. In Young, the Supreme Court
reversed the dismissal of the case and remanded the matter to the juvenile court
for further proceedings to determine whether the problems that led to the
temporary custody order had been resolved or mitigated. Id. at 639. The court indicated that if the problems had been resolved or mitigated, then the child
should be returned to his mother, but if not, then the court has the power to
make a further dispositional order under R.C. 2151.415. Id.
Consistent with Young, it has been held that a simple dismissal is
not an appropriate disposition for a juvenile court to enter when a child has
previously been adjudicated abused, neglected, or dependent. In re R.A., 172
Ohio App.3d 53, 2007-Ohio-2997, 872 N.E.2d 1284, ¶ 63 (3d Dist.); see also In re
D.H., 4th Dist. Gallia No. 09CA11, 2009-Ohio-6009, ¶ 44 (finding juvenile court
erred when it dismissed the case without journalizing an express
determination); In re E.M., 8th Dist. Cuyahoga No. 79249, 2001 Ohio App.
LEXIS 5011, 24-25 (Nov. 8, 2001) (recognizing the statutory time limitations
contained in R.C. 2151.353(F) are directory rather than mandatory and the
passing of the statutory deadlines does not divest the judge of jurisdiction to
render an appropriate dispositional order).
Accordingly, we find the juvenile court erred in dismissing this
case simply because the temporary custody order was about to expire and no
motion had been filed by CCDCFS prior to the hearing, which was held a day
before the sunset date.1 In accordance with Young, the juvenile court has
continuing jurisdiction over the child and must determine whether the problems
1 We note that the motion would have been timely since it was filed before the expiration of the extension period. that led to the original grant of temporary custody have been resolved or
sufficiently mitigated. Therefore, we reverse the decision of the juvenile court
to dismiss the case and we remand the matter to the juvenile court for further
proceedings. Upon remand, the juvenile court is instructed to reinstate the
motion of CCDCFS to modify temporary custody to permanent custody and the
court shall conduct a hearing and issue an appropriate order of disposition in
Judgment reversed. Case remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and MARY EILEEN KILBANE, J., CONCUR