[Cite as In re B.A., 2013-Ohio-596.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
: IN THE MATTER OF : Case No: 12CA18 : B.A. : RELEASED 02/01/13 : DEPENDENT CHILD. : DECISION AND : JUDGMENT ENTRY :
APPEARANCES:
Lynn W. Turner, Hillsboro, Ohio, for Appellant Mother.
Anneka P. Collins, Highland County Prosecutor, and Molly Bolek, Highland County Assistant Prosecutor, Hillsboro, Ohio, for Appellee Highland County Children Services.
Lee Koogler, Hillsboro, Ohio, Guardian Ad Litem.
Kline, J.:
{¶1} Mother appeals the judgment of the Highland County Court of Common
Pleas, Juvenile Division. After finding that B.A. (hereinafter the “Child”) had been
abandoned, the juvenile court awarded permanent custody of the Child to Highland
County Children Services (hereinafter “Children Services”). On appeal, Mother
contends that Children Services filed for permanent custody too early. Mother claims
that Children Services had to wait until the Child had been in its temporary custody for
at least 12 months. We disagree. Children Services sought permanent custody on
grounds other than R.C. 2151.414(B)(1)(d). Therefore, the motion for permanent
custody was clearly authorized, and the juvenile court had the authority to grant Highland App. No. 12CA18 2
permanent custody of the Child to Children Services. Accordingly, we overrule Mother’s
assignment of error and affirm the judgment of the juvenile court.
I.
{¶2} The Child was born on March 17, 2011. The next day, Children Services
moved for temporary custody of the Child.
{¶3} On April 14, 2011, the juvenile court found the Child “to be a Dependent
Child.” Entry of Adjudication and Disposition at 1. As a result, the juvenile court
ordered “that temporary custody of the [Child] shall be vested in [Children Services] for
a period of six (6) months, to automatically terminate on September 17, 2011[,] unless a
timely motion is filed in the Court.” Id. at 2.
{¶4} On August 31, 2011, Children Services filed a motion to extend temporary
custody of the Child. The juvenile court granted the motion and ordered that “temporary
custody of the [Child] shall remain vested with [Children Services] for a period of six (6)
months, to automatically terminate on March 15, 2012 * * *.” Entry Extending
Temporary Custody.
{¶5} On February 14, 2012, Children Services filed a motion for permanent
custody “pursuant to Ohio Juvenile Rule 34, O.R.C. §2151.414, and O.R.C. §2515.413.”
Motion to Modify Disposition to Permanent Custody at 1. According to the motion,
“Permanent Custody is an appropriate disposition in this matter as the child has been
abandoned by both of his parents pursuant to O.R.C. §2151.414(B)(1)(b) [sic] and
cannot be placed with either parent within a reasonable amount of time pursuant to
O.R.C. §2151.414(E).” Id. Highland App. No. 12CA18 3
{¶6} On August 23, 2012, the juvenile court found that both parents had
abandoned the Child. As a result, the juvenile court placed the Child in the permanent
custody of Children Services.
{¶7} Mother appeals and asserts the following assignment of error: I. “THE
TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE AGENCY
BECAUSE OF FINDINGS INCONSISTENT WITH STATUTE [sic].”
II.
{¶8} In her sole assignment of error, Mother contends that the juvenile court
erred in awarding permanent custody of the Child to Children Services.
{¶9} A parent’s “interest in the care, custody, and control of [his or her] children
‘is perhaps the oldest of the fundamental liberty interests * * *.’” In re D.A., 113 Ohio
St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 8, quoting Troxel v. Granville, 530 U.S.
57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
“[P]ermanent termination of parental rights has been
described as ‘the family law equivalent of the death penalty
in a criminal case.’ In re Smith (1991), 77 Ohio App.3d 1,
16, 601 N.E.2d 45, 54. Therefore, parents ‘must be afforded
every procedural and substantive protection the law allows.’
Id.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d
680.
In re D.A., 2007-Ohio-1105, at ¶ 10.
{¶10} “A public or private child-placement agency may file a motion under R.C.
2151.413(A) to request permanent custody of a child after a court has committed the Highland App. No. 12CA18 4
child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. Once a R.C.
2151.413(A) motion is filed, the court must follow R.C. 2151.414. Id. A juvenile court
may grant the agency’s motion for permanent custody if it determines by clear and
convincing evidence that: (1) one of the four conditions outlined in R.C.
2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.
2151.414(B)(1); In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-1429, ¶ 13.
{¶11} Ordinarily, we review permanent-custody cases to determine whether
competent, credible evidence supports the juvenile court’s factual findings. See, e.g., In
re M.S., D.S., and A.S., 4th Dist. Nos. 11CA823 & 11CA824, 2012-Ohio-3207, ¶ 17.
Mother does not, however, dispute either the juvenile court’s finding (1) of abandonment
or (2) that permanent custody is in the Child’s best interest. Instead, Mother argues that
the juvenile court misapplied the relevant statutes. Therefore, our review is de novo.
See State v. Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (4th Dist.1995)
(“When interpreting statutes and their application, an appellate court conducts a de
novo review, without deference to the trial court’s determination.”). Furthermore, Mother
did not raise her argument at the trial-court level. Therefore, Mother has forfeited all but
plain error. See In re C.B., 3d Dist. Nos. 13-12-06 & 13-12-07, 2012-Ohio-2691, ¶ 33.
In appeals of civil cases, the plain error doctrine is not
favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial Highland App. No. 12CA18 5
process, thereby challenging the legitimacy of the underlying
judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d
116, 679 N.E.2d 1099 (1997), syllabus.
Accord In re D.N., 4th Dist. No. 11CA3203, 2011-Ohio-4627, ¶ 24.
{¶12} Essentially, Mother argues that, because the juvenile court found the Child
to be abandoned under R.C. 2151.414(B)(1)(b), Children Services could not have filed
for permanent custody under R.C. 2151.413(A). Instead, Mother claims that Children
Services had to wait and file for permanent custody under R.C. 2151.413(D)(1) -- that
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[Cite as In re B.A., 2013-Ohio-596.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
: IN THE MATTER OF : Case No: 12CA18 : B.A. : RELEASED 02/01/13 : DEPENDENT CHILD. : DECISION AND : JUDGMENT ENTRY :
APPEARANCES:
Lynn W. Turner, Hillsboro, Ohio, for Appellant Mother.
Anneka P. Collins, Highland County Prosecutor, and Molly Bolek, Highland County Assistant Prosecutor, Hillsboro, Ohio, for Appellee Highland County Children Services.
Lee Koogler, Hillsboro, Ohio, Guardian Ad Litem.
Kline, J.:
{¶1} Mother appeals the judgment of the Highland County Court of Common
Pleas, Juvenile Division. After finding that B.A. (hereinafter the “Child”) had been
abandoned, the juvenile court awarded permanent custody of the Child to Highland
County Children Services (hereinafter “Children Services”). On appeal, Mother
contends that Children Services filed for permanent custody too early. Mother claims
that Children Services had to wait until the Child had been in its temporary custody for
at least 12 months. We disagree. Children Services sought permanent custody on
grounds other than R.C. 2151.414(B)(1)(d). Therefore, the motion for permanent
custody was clearly authorized, and the juvenile court had the authority to grant Highland App. No. 12CA18 2
permanent custody of the Child to Children Services. Accordingly, we overrule Mother’s
assignment of error and affirm the judgment of the juvenile court.
I.
{¶2} The Child was born on March 17, 2011. The next day, Children Services
moved for temporary custody of the Child.
{¶3} On April 14, 2011, the juvenile court found the Child “to be a Dependent
Child.” Entry of Adjudication and Disposition at 1. As a result, the juvenile court
ordered “that temporary custody of the [Child] shall be vested in [Children Services] for
a period of six (6) months, to automatically terminate on September 17, 2011[,] unless a
timely motion is filed in the Court.” Id. at 2.
{¶4} On August 31, 2011, Children Services filed a motion to extend temporary
custody of the Child. The juvenile court granted the motion and ordered that “temporary
custody of the [Child] shall remain vested with [Children Services] for a period of six (6)
months, to automatically terminate on March 15, 2012 * * *.” Entry Extending
Temporary Custody.
{¶5} On February 14, 2012, Children Services filed a motion for permanent
custody “pursuant to Ohio Juvenile Rule 34, O.R.C. §2151.414, and O.R.C. §2515.413.”
Motion to Modify Disposition to Permanent Custody at 1. According to the motion,
“Permanent Custody is an appropriate disposition in this matter as the child has been
abandoned by both of his parents pursuant to O.R.C. §2151.414(B)(1)(b) [sic] and
cannot be placed with either parent within a reasonable amount of time pursuant to
O.R.C. §2151.414(E).” Id. Highland App. No. 12CA18 3
{¶6} On August 23, 2012, the juvenile court found that both parents had
abandoned the Child. As a result, the juvenile court placed the Child in the permanent
custody of Children Services.
{¶7} Mother appeals and asserts the following assignment of error: I. “THE
TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE AGENCY
BECAUSE OF FINDINGS INCONSISTENT WITH STATUTE [sic].”
II.
{¶8} In her sole assignment of error, Mother contends that the juvenile court
erred in awarding permanent custody of the Child to Children Services.
{¶9} A parent’s “interest in the care, custody, and control of [his or her] children
‘is perhaps the oldest of the fundamental liberty interests * * *.’” In re D.A., 113 Ohio
St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 8, quoting Troxel v. Granville, 530 U.S.
57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
“[P]ermanent termination of parental rights has been
described as ‘the family law equivalent of the death penalty
in a criminal case.’ In re Smith (1991), 77 Ohio App.3d 1,
16, 601 N.E.2d 45, 54. Therefore, parents ‘must be afforded
every procedural and substantive protection the law allows.’
Id.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d
680.
In re D.A., 2007-Ohio-1105, at ¶ 10.
{¶10} “A public or private child-placement agency may file a motion under R.C.
2151.413(A) to request permanent custody of a child after a court has committed the Highland App. No. 12CA18 4
child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. Once a R.C.
2151.413(A) motion is filed, the court must follow R.C. 2151.414. Id. A juvenile court
may grant the agency’s motion for permanent custody if it determines by clear and
convincing evidence that: (1) one of the four conditions outlined in R.C.
2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.
2151.414(B)(1); In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-1429, ¶ 13.
{¶11} Ordinarily, we review permanent-custody cases to determine whether
competent, credible evidence supports the juvenile court’s factual findings. See, e.g., In
re M.S., D.S., and A.S., 4th Dist. Nos. 11CA823 & 11CA824, 2012-Ohio-3207, ¶ 17.
Mother does not, however, dispute either the juvenile court’s finding (1) of abandonment
or (2) that permanent custody is in the Child’s best interest. Instead, Mother argues that
the juvenile court misapplied the relevant statutes. Therefore, our review is de novo.
See State v. Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (4th Dist.1995)
(“When interpreting statutes and their application, an appellate court conducts a de
novo review, without deference to the trial court’s determination.”). Furthermore, Mother
did not raise her argument at the trial-court level. Therefore, Mother has forfeited all but
plain error. See In re C.B., 3d Dist. Nos. 13-12-06 & 13-12-07, 2012-Ohio-2691, ¶ 33.
In appeals of civil cases, the plain error doctrine is not
favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial Highland App. No. 12CA18 5
process, thereby challenging the legitimacy of the underlying
judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d
116, 679 N.E.2d 1099 (1997), syllabus.
Accord In re D.N., 4th Dist. No. 11CA3203, 2011-Ohio-4627, ¶ 24.
{¶12} Essentially, Mother argues that, because the juvenile court found the Child
to be abandoned under R.C. 2151.414(B)(1)(b), Children Services could not have filed
for permanent custody under R.C. 2151.413(A). Instead, Mother claims that Children
Services had to wait and file for permanent custody under R.C. 2151.413(D)(1) -- that
is, wait until after the Child had been in the custody of Children Services “for twelve or
more months of a consecutive twenty-two-month period.” R.C. 2151.413(D)(1). And
because Children Services did not wait and file under R.C. 2151.413(D)(1), Mother
claims that the juvenile court did not have the authority to grant permanent custody of
the Child to Children Services.
{¶13} We find no merit in Mother’s argument. First, we disagree that the juvenile
court misapplied the relevant statutes. Under R.C. 2151.413(A), “A public children
services agency or private child placing agency that * * * is granted temporary custody
of a child who is not abandoned or orphaned may file a motion in the court that made
the disposition of the child requesting permanent custody of the child.” And here,
Children Services was not granted temporary custody of an abandoned child. Rather,
Children Services was granted temporary custody on the basis of dependency. The
Child was not found to be abandoned until the juvenile court granted permanent custody
of the Child to Children Services. Therefore, for purposes of filing under R.C. Highland App. No. 12CA18 6
2151.413(A), Children Services had temporary custody of a child who was dependent,
not temporary custody of a child who was abandoned.
{¶14} Furthermore, based on Supreme Court of Ohio precedent, the motion for
permanent custody was clearly permissible. The Supreme Court of Ohio addressed the
issue of permanent custody in In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818
N.E.2d 1176. The holding of In re C.W. is: “Before a public children-services agency or
private child-placing agency can move for permanent custody of a child on R.C.
2151.414(B)(1)(d) grounds, the child must have been in the temporary custody of an
agency for at least 12 months of a consecutive 22-month period.” (Emphasis added.)
Id. at syllabus. However, the court also noted that this “holding does not preclude an
agency from moving for permanent custody before a child has been in the agency’s
temporary custody for at least 12 months. If a ground other than R.C.
2151.414(B)(1)(d) exists to support a grant of permanent custody, the agency may
move for permanent custody on that other ground.” Id. at ¶ 27. And here, Children
Services moved for permanent custody on grounds other than R.C. 2151.414(B)(1)(d) --
namely, R.C. 2151.414(B)(1)(b) and 2151.414(E). Therefore, Children Services did not
have to wait 12 months to file the motion for permanent custody.
{¶15} Furthermore, the Ninth Appellate District rejected a similar argument in In
re M.W., G.B., and C.B., 9th Dist. No. 11CA9975, 2011-Ohio-3886. In that case, the
trial court found (among other things) that the children had been abandoned. See id. at
¶ 11. And on appeal, the mother argued “that [Lorain County Children Services] failed
to comply with R.C. 2151.413(D)(1) by filing the permanent custody motion before the Highland App. No. 12CA18 7
children had been in its temporary custody for a period of 12 months.” Id. at ¶ 12. The
court of appeals disagreed for the following reasons:
Although it is well settled that a children services
agency must have temporary custody of children for at least
12 months at the time its [sic] files a permanent custody
motion under the “12 of 22” provision of R.C.
2151.414(B)(1)(d), see In re C. W., 104 Ohio St.3d 163,
2004-Ohio-6411, [Lorain County Children Services] did not
allege the “12 of 22” ground in its permanent custody motion.
Instead, it based the first prong of the permanent custody
test on abandonment by the parents and Mother’s failure to
substantially remedy the conditions that led to the continued
removal of the children from her home. See R.C.
2151.414(B)(1)(b) and (E)(1).
Given that [Lorain County Children Services] did not
base its permanent custody motion on the “12 of 22” ground,
Mother’s argument is without merit. In re M.W., G.B., and
C.B., 2011-Ohio-3886, at ¶ 13-14.
We agree with the Ninth Appellate District and apply the reasoning of In re M.W., G.B.,
and C.B. to the present case.
{¶16} Because Children Services sought permanent custody on the basis of
R.C. 2151.414(B)(1)(b) and 2151.414(E), the motion for permanent custody was clearly
authorized. Children Services did not have to wait until the Child had been in its Highland App. No. 12CA18 8
temporary custody for at least 12 months, and the juvenile court had the authority to
grant permanent custody of the Child to Children Services. Accordingly, we reject
Mother’s sole assignment of error and affirm the juvenile court’s judgment.
JUDGMENT AFFIRMED. Highland App. No. 12CA18 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Juvenile Division of the Highland County 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. Exceptions.
McFarland, P.J. & Abele, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.