In re B.D.

2018 Ohio 3945

Opinion

[Cite as In re B.D., 2018-Ohio-3945.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. John W. Wise, P.J. B.D. AND I.D. : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. : : Case Nos. 18 CAF 01 0003 : 18 CAF 01 0004 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 15-01-0056-AB and 15-01-0057-AB

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 27, 2018

APPEARANCES:

For Appellants For Appellee

HEATHER AND ADAM MAY, Pros Se KATHERYN L. MUNGER 187 Ramshorn Road 140 North Sandusky Street Dudley, MA 01571 3rd Floor Delaware, OH 43015 For Mother Guardian Ad Litem LOIS PALAU 2 West Winter Street PAMELLA LAMMON Delaware, OH 43015 103 North Union Street Suite B For Children P.O. Box 387 Delaware, OH 43081 O. ROSS LONG 125 North Sandusky Street Delaware, OH 43081 Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 2

Wise, Earle, J.

{¶ 1} Appellants, Heather and Adam May, appeal the December 6, 2017

judgment entries of the Court of Common Pleas of Delaware County, Ohio, Juvenile

Division, terminating the cases. Appellee is the Delaware County Department of Job and

Family Services.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 17, 2014, a Kentucky court granted "permanent legal custody" of

B.D. born March 28, 2010, and I.D. born September 17, 2001, to their maternal aunt and

uncle, appellants herein. At the time, appellants resided in Ohio and the children and

their mother resided in Kentucky. Thereafter, mother moved to Illinois. Because none of

the parties no longer resided in Kentucky, Kentucky ceded jurisdiction to Ohio; however,

the cases were never properly certified to Ohio.

{¶ 3} In July 2014, mother filed custody cases in the juvenile court in Delaware

County, Ohio (Case Nos. 14071592-AD and 14071593-AD).

{¶ 4} On January 14, 2015, the children's guardian ad litem filed complaints in

the juvenile court in Delaware County, Ohio, alleging the children to be dependent

children (Case Nos. 15-01-0056-AB and 15-01-0057-AB).1 These cases are the subject

of these appeals. The complaints alleged appellants were planning a move to

Massachusetts and were unsure whether they would retain custody of the children. The

complaints sought court ordered protective supervision by appellee and temporary

custody of the children to appellants.

1The filings in each case are identical. A third case for a third child was filed but later dismissed because the child reached the age of majority (Case No. 15-01-0058-AB). Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 3

{¶ 5} A shelter care hearing was held before a magistrate on January 15, 2015.

By decision filed January 30, 2015, the magistrate indicated the children's mother and

appellants were present. Appellants admitted to dependency and temporary custody of

the children was given to appellee. The trial court approved and adopted the magistrate's

decision. The children were placed in foster care.

{¶ 6} At some point, appellants moved to Massachusetts as planned;

proceedings continued in Ohio.

{¶ 7} A hearing before a magistrate was held on March 4, 2015. By decision filed

March 6, 2015, the magistrate indicated the children's mother and appellants were

present. Mother admitted to dependency and appellants requested reunification with the

children. The children were adjudicated dependent and ordered to remain in appellee's

temporary custody (foster care). The trial court approved and adopted the magistrate's

decision.

{¶ 8} Hearings on appellants' request for reunification were held before a

magistrate on June 8, and July 2, 2015. Pursuant to a notice by appellee filed August 6,

2015, the initial ICPC (Interstate Compact on the Placement of Children) from

Massachusetts was approved and appellee had placed the children with appellants in

Massachusetts on August 3, 2015. By decision filed August 27, 2015, the magistrate

indicated the children's mother and appellants were present at the hearings. After

outlining the testimony from a number of witnesses, the magistrate ordered that the

children remain in appellee's temporary custody with placement to appellants in

Massachusetts. The ICPC home study of appellants' home was to be completed and

approved. The magistrate further ordered that Massachusetts shall supervise and Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 4

oversee the placement of the children, and Ohio would retain jurisdiction until such time

as Massachusetts formally notifies appellee that it agrees to and approves of legal

custody to appellants, at which time appellee may terminate the cases. The trial court

approved and adopted the magistrate's decision.

{¶ 9} All parties filed objections. Appellants filed additional objections to

appellee's semi-annual review reports, as well as administrative appeals in Franklin

County, Ohio.

{¶ 10} On February 12, 2016, appellants filed a motion to stay the proceedings on

legal custody. Appellants argued circumstances have changed since the hearings

because of issues arising from the definition of "legal custody" in Ohio relative to the law

in Massachusetts, financial assistance might be available to the children if the disposition

was permanent in nature, mother of the children was sentenced to thirty months in prison

on a felony offense, Massachusetts has not approved the ICPC home study or discharged

the case, and appellants' future employment and income were uncertain. On August 9,

2016, all issues were stayed to give the parties an opportunity to work on the complicated

legalities of the situation.

{¶ 11} On November 1, 2016, appellee filed a motion to terminate its temporary

custody and terminate the cases because there was no longer a protective need. A

hearing on all pending matters was held on December 19, 2016. The trial court was

informed that appellants had filed a writ of prohibition with the Supreme Court of Ohio,

asking the court to prohibit the trial court from ruling on the motion to terminate. By

judgment entry filed same date, the trial court continued appellee's temporary custody of

the children with placement to appellants. Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 5

{¶ 12} On April 24, 2017, an entry was filed by the Supreme Court of Ohio

dismissing appellants' writ.

{¶ 13} On July 3, 2017, appellee filed a second motion to terminate the cases

pursuant to R.C. 2151.415 as the children have been in its temporary custody for two

years.

{¶ 14} On July 14, 2017, the trial court filed a judgment entry ruling on all the

objections filed to the magistrate's August 27, 2015 decision and the semi-annual reviews.

Some were granted, some were denied, and some were rendered moot. The trial court

agreed once appellee was granted legal custody, it had the sole authority to determine

placement; therefore, the magistrate erred in designating a specific placement for the

children (appellants) and the trial court vacated the order. The trial court also found the

magistrate failed to include findings on best interests and reasonable efforts in its written

decision, so the trial court entered the findings. The trial court denied appellee's first

motion to terminate the cases and ordered a hearing on the second motion to terminate.

{¶ 15} On July 31, 2017, appellants withdrew their request for legal custody

because Massachusetts would not approve the ICPC because an award of "legal

custody" was not permanent in nature. Appellants desired a more permanent placement

such as adoption. Appellants argued appellee was legally obligated to file a motion for

permanent custody.

{¶ 16} On August 23, 2017, appellants filed a proposal to review and modify the

case plan. Appellants wanted the case plan permanency goal modified from permanent

placement with relative to permanent custody to appellee. Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 6

{¶ 17} On August 29, 2017, counsel for the children filed a motion for permanent

custody to appellee. By judgment entry filed September 7, 2017, the trial court denied

the motion, concluding that only appellee or a guardian ad litem could file such a motion.

After giving the parties sufficient time, neither appellee nor the guardian ad litem filed a

motion for permanent custody.

{¶ 18} By judgment entry filed December 6, 2017, the trial court granted appellee's

second motion to terminate the cases. The trial court found it was in the children's best

interests to remain in the physical custody of appellants; however, the trial court

concluded it did not have a viable legal option under Ohio law to make such an order.

Therefore, the trial court terminated the cases in their entirety.

{¶ 19} Appellants filed an appeal in each case and this matter is now before this

court for consideration. The assignments of error are identical in each case:

I

{¶ 20} "THE TRIAL COURT ERRED BY NOT ENSURING CONSTITUTIONALLY

ADEQUATE DUE PROCESS AND PROCEDURAL DUE PROCESS."

II

{¶ 21} "THE TRIAL COURT ERRED BY NOT ENFORCING THE RULES AND

REGULATIONS OF THE INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN."

III

{¶ 22} "THE TRIAL CORT ERRED BY FAILING TO PROTECT THE CHILDREN'S

AND THE MAYS' CONSTITUTIONAL RIGHT TO EQUAL PROTECTION."

IV Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 7

{¶ 23} "THE TRIAL COURT ERRED BY NOT CONFIRMING THAT DCDJFS HAD

TAKEN THE NECESSARY STEPS TO FINALIZE THE CHILDREN'S PERMANENCY

PLAN."

I, II, III, IV

{¶ 24} At the outset, we note appellants' arguments in their brief do not logically

follow the listed assignments of error or the claimed issues presented for review. We will

address appellants' arguments as they relate to the appealed from judgment entries

wherein the trial court granted appellee's second motion to terminate the cases.

{¶ 25} In its December 6, 2017 judgment entries terminating the cases, the trial

court reviewed the procedural history of the cases, the interplay of Kentucky, Ohio, and

Massachusetts law, the dispositional and termination options in Ohio dependency

actions, and the best interests of the children. The trial court found the best interests of

the children would be to remain with appellants. The trial court went on to ask and

conclude the following:

How, then, may this Court effectuate their continued placement with

Mr. and Mrs. May? The Court may not grant further extensions of temporary

custody in these matters. The decisions and positions of the parties, the

terms of the ICPC and the incongruous language used in the custody

statutes of the three states at issue in these convoluted cases have forced

this Court into having one, and only one, possible order at this juncture that

would permit the children to remain in the care and 'permanent custody' of

Mr. and Mrs. May. Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 8

If the Court may not extend and may not reunify, may not make a

new legal custody order, and the parties who could file for permanent

custody will not do so, the Court is left with only one available procedural

option that retains placement and custody that is in the best interests of the

children.

IX. Conclusion

It is in the best interests of [B.] and [I.D.] that they remain in the

physical and legal custody of their aunt and uncle, Mr. and Mrs. May.

Because this Court has no viable legal option under Ohio law to make a

new order to that effect, and because termination of all Ohio orders will

cause a reversion to the Kentucky order of 'permanent custody' – an order

that would require a showing of a change in circumstances in order for the

children to later be removed from the home of Mr. and Mrs. May pursuant

to R.C. 3109.04(E), an order terminating these cases in their entirety is in

the best interests of the children in this matter.

{¶ 26} In their appellate brief, appellants make broad generalizations and

sweeping claims of due process and equal protection violations, citing federal statutes

and United States Supreme Court cases. Appellants cite large portions of statutes and

laws with very little argument as to how it pertains to their cases and the trial court's

decision to terminate the cases. It is difficult to ascertain exactly what appellants are

challenging. We note any due process and equal protection arguments made on behalf Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 9

of the children are moot as the children are represented by counsel and are not parties

to these appeals.

{¶ 27} First, appellants appear to be arguing the trial court did not expend

reasonable efforts to prevent the removal of the children from their home and facilitate

reunification.

{¶ 28} Prior to the commencement of the Ohio proceedings, the children had been

in appellants' custody for approximately twelve months pursuant to a court order out of

Kentucky. At the time of the Kentucky proceedings, appellants resided in Ohio and the

children's mother lived in Kentucky. At some point, mother moved to Illinois. Because

none of the parties lived in Kentucky, the Kentucky court terminated the cases.

{¶ 29} On January 14, 2015, the children's guardian ad litem in Ohio filed

complaints alleging the children to be dependent because appellants were moving to

Massachusetts and according to the complaints, appellants "have vacillated as to whether

they will retain custody of the minor children." During the shelter care hearing held on

January 15, 2015, appellants admitted the children were dependent. See Magistrate's

Decision filed January 30, 2015. As a result, the children were placed in appellee's

temporary custody and entered foster care.

{¶ 30} The reason the children were removed from appellants' home was due to

their own actions. Less than two months later, appellants attended a hearing on March

4, 2015, and requested reunification with the children. After the initial ICPC from

Massachusetts was approved, appellee placed the children with appellants in

Massachusetts on August 3, 2015, where the children apparently remain to this day. Any

arguments relative to removal and reunification are moot. Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 10

{¶ 31} Secondly, appellants appear to make arguments regarding foster care

maintenance payments. These are issues they raised in administrative appeals they filed

in Ohio which are not the subject of the judgment entries appealed from.

{¶ 32} Thirdly, appellants argue permanency under R.C. 2151.415(D). Appellants

argue the children did not receive permanency hearings in July 2016 and 2017 pursuant

to R.C. 2151.417(C) and Juv.R. 36 and 38(B). In their appellate brief at 34, appellants

cite R.C. 2151.417(G)(4) in support. Said section obligates a trial court to conduct review

hearings and "determine what actions are required" "[i]f the child is in permanent custody."

Appellee recommended legal custody and did not seek permanent custody, finding

compelling reasons that permanent custody was not in the children's best interests for

the reasons set forth in its reply to counsel for the minor children's memorandum in

opposition filed August 25, 2017. Appellee did not file a motion for permanent custody

consistent with the dictates of R.C. 2151.413(D). R.C. 2151.417(G)(4) does not apply in

this case. Administrative review hearings and review hearings before a magistrate were

conducted on March 31, May 6, and July 13, 2015, January 8, May 23, July 1, and

December 19, 2016, and January 3, and June 30, 2017. Appellee filed its second motion

to terminate the cases on July 3, 2017 because the children had been in its temporary

custody for two years. We do not find the trial court failed to conduct the required review

hearings.

{¶ 33} Appellants do not appear to argue any specific findings or decisions made

by the trial court in its December 6, 2017 judgment entries granting appellee's second

motion to terminate the cases. The trial court conducted a thorough analysis of its options

under Ohio law and we do not find any error in the trial court's decision to terminate the Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 11

cases. The children had been in appellee's temporary custody for over two years and

appellee had no intention of moving for permanent custody. Appellants are now in the

exact same position as they were prior to the dependency action that they caused, i.e.,

"permanent legal custodians" of the children pursuant to the Kentucky order.

Furthermore, as noted by the trial court in its judgment entry at 15: "An Ohio Court has

no authority to alter the custodial order of another state unless that order has been validly

transferred to it, and the order from Kentucky granting 'permanent custody' to Mr. and

Mrs. May was never subject to an ICPC action and, thus, never certified to Ohio."

{¶ 34} Upon review, we find the trial court did not err in granting appellee's second

motion to terminate the cases.

{¶ 35} Assignments of Error I, II, III, and IV are denied. Delaware County, Case Nos. 18 CAF 01 0003 and 18 CAF 01 0004 12

{¶ 36} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Juvenile Division is hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Gwin, J. concur.

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