[Cite as In re J.B., 2020-Ohio-6651.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
In re J.B., Z.B., E.B. Court of Appeals Nos. E-19-068 E-19-069 E-19-070
Trial Court Nos. 2018-JN-064 2018-JN-063 2018-JN-062
DECISION AND JUDGMENT
Decided: December 11, 2020
*****
Edward J. Stechschulte, for appellant.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
OSOWIK, J.
{¶ 1} In this consolidated appeal of three cases, appellant father appeals the
November 5, 2019 and November 18, 2019 judgment entries of the Erie County Court of
Common Pleas, Juvenile Division, formalizing the in-court, on record agreement of the
parties concerning custody and visitation of three minor children. {¶ 2} Appellant presents three assignments of error for our review:
Assignment of Error No. 1: The trial court erred in accepting the
agreement without advising Appellant of the parental rights that he was
waiving and therefore Appellant’s consent was not voluntarily made.
Assignment of Error No. 2: The trial court erred by awarding legal
custody of the minor children without ascertaining whether the award was
in the children’s best interest.
Assignment of Error No. 3: Appellant was denied his constitutional
right to effective assistance of counsel.
{¶ 3} A brief history of these cases is illuminating. On October 1, 2018, the Erie
County Juvenile Court entered an ex parte order granting emergency protective
supervision to the Erie County Department of Job and Family Services (ECDJFS).
Mother was initially awarded temporary custody and appellant father was ordered to have
no contact with the children except through ECDJFS. The next day, on October 2, 2018,
ECDJFS filed three separate complaints pursuant to R.C. 2151.27 alleging that each
minor child was a neglected/dependent child.
{¶ 4} On October 30, 2018, the cases came before the court for an adjudicatory
hearing on these complaints. Both mother and father admitted the allegation of
dependency and ECDJFS dropped the neglect allegations of the complaints. The court
found each child dependent and granted protective supervision, and father was ordered
not to have direct or indirect contact with the children except with supervision.
2. {¶ 5} The matter came up for disposition review on November 27, 2018. In a
judgment entry issued December 5, 2018, the court continued the protective supervision
and approved a case plan.
{¶ 6} The case then came up again for dispositional review on April 2, 2019. The
court again continued protective supervision and the case plan.
{¶ 7} Beginning on May 7, 2019, father filed a flurry of motions for change of
parenting time. On May 29, 2019, he filed a motion for change of parenting time and a
separate motion to modify custody.
{¶ 8} Father also filed motions to modify visitation on June 7, July 17, and
July 23, 2019. On July 23, 2019, the matter came on for dispositional review, and the
court continued protective supervision and the case plan.
{¶ 9} The case again came on for disposition review on September 3, 2019, and
protective supervision was continued.
{¶ 10} On October 22, 2019, father’s pending motions, along with the
dispositional review came before the court for trial.
{¶ 11} However, before the trial commenced, the parties reached an agreement on
all matters.
{¶ 12} At the hearing, ECDJFS articulated a detailed plan for the father to
continue with supervised visitation, graduating overtime to unsupervised visitation, and
subsequently overnight visitation, and then ultimately to a schedule of visitation pursuant
to the court’s standard order.
3. {¶ 13} In court, appellant was actively engaged in the discussion of holiday
visitation, particularly Christmas and Christmas Eve. The record demonstrates that he
understood the terms of the agreement.
{¶ 14} Under the agreement that was read into the record, ECDJFS would
eventually terminate its protective supervision. On November 5, 2019, the trial court
issued an order setting forth the visitation schedule ordering mother’s temporary custody
terminated and granting her legal custody. The court issued similar orders with respect to
the other children. These appeals followed.
Argument
{¶ 15} In his first assignment of error, father argues that the trial court erred in
accepting the agreement of the parties without first advising him of the parental rights
that he was waiving. He does not dispute that he agreed to the settlement as read into the
record or that he misunderstood any of its terms.
{¶ 16} In support of his argument, he implores this court to impose a new standard
in change of legal custody cases that, heretofore, have been reserved for the domain of
permanent termination of custody proceedings. Specifically, he argues that in change of
custody cases, the trial court should engage in a personal meaningful colloquy with the
parent prior to approval of any agreement. He cites to our case of Elmer v. Lucas Cty.
Children Serv. Bd., 36 Ohio App.3d 241, 523 N.E.2d 540 (6th Dist.1987). But the facts
and legal considerations involved in Elmer are quite distinct from the facts herein. In that
case, the agency was seeking permanent custody of the minor children. The appellant
4. had entered into an agreement in which he was permanently waiving his parental rights.
And further, the hearing in Elmer was at an adjudicatory stage, which clearly invoked the
advisement requirements of Juv.R. 29. The adjudicatory proceeding in this case took
place when the juvenile court adjudicated the children as dependent and granted ECDJFS
emergency protective supervision on October 2, 2018. That determination and those
proceedings are not part of this appeal.
{¶ 17} In this case, the complaints filed by ECDJFS were seeking a finding of
neglect/dependency under R.C. 2151.27. While permanent termination of parental rights
is a dispositional option for the court under R.C. 2151.353(A)(4), it was not being sought
at the October 22, 2019 hearing, nor was it contemplated in the agreement that was read
into the record.
{¶ 18} The trial in this instance came before the court on appellant’s own
numerous motions concerning visitation and custody modification, not for trial involving
permanent termination of his parental rights.
{¶ 19} The October 22, 2019 hearing was, therefore, dispositional in nature which
was governed by Juv.R. 34 and R.C. 2151.353. The only advisement and colloquy
required under either the rule or statute at a dispositional hearing of this nature is the
advisement of the right to appeal, pursuant to Juv.R. 34(J).
{¶ 20} The detailed record of this agreement concerning appellant’s rights of
visitation was read into the record with appellant and his counsel present. The agreement
envisioned a gradual expansion of his visitation and would eventually culminate with a
5. standard court schedule of visitation. At no point in this proceeding was permanent
termination of appellant’s parental rights even contemplated or implicated.
{¶ 21} Therefore, upon consideration of the record, statutes and case law, we
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[Cite as In re J.B., 2020-Ohio-6651.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
In re J.B., Z.B., E.B. Court of Appeals Nos. E-19-068 E-19-069 E-19-070
Trial Court Nos. 2018-JN-064 2018-JN-063 2018-JN-062
DECISION AND JUDGMENT
Decided: December 11, 2020
*****
Edward J. Stechschulte, for appellant.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
OSOWIK, J.
{¶ 1} In this consolidated appeal of three cases, appellant father appeals the
November 5, 2019 and November 18, 2019 judgment entries of the Erie County Court of
Common Pleas, Juvenile Division, formalizing the in-court, on record agreement of the
parties concerning custody and visitation of three minor children. {¶ 2} Appellant presents three assignments of error for our review:
Assignment of Error No. 1: The trial court erred in accepting the
agreement without advising Appellant of the parental rights that he was
waiving and therefore Appellant’s consent was not voluntarily made.
Assignment of Error No. 2: The trial court erred by awarding legal
custody of the minor children without ascertaining whether the award was
in the children’s best interest.
Assignment of Error No. 3: Appellant was denied his constitutional
right to effective assistance of counsel.
{¶ 3} A brief history of these cases is illuminating. On October 1, 2018, the Erie
County Juvenile Court entered an ex parte order granting emergency protective
supervision to the Erie County Department of Job and Family Services (ECDJFS).
Mother was initially awarded temporary custody and appellant father was ordered to have
no contact with the children except through ECDJFS. The next day, on October 2, 2018,
ECDJFS filed three separate complaints pursuant to R.C. 2151.27 alleging that each
minor child was a neglected/dependent child.
{¶ 4} On October 30, 2018, the cases came before the court for an adjudicatory
hearing on these complaints. Both mother and father admitted the allegation of
dependency and ECDJFS dropped the neglect allegations of the complaints. The court
found each child dependent and granted protective supervision, and father was ordered
not to have direct or indirect contact with the children except with supervision.
2. {¶ 5} The matter came up for disposition review on November 27, 2018. In a
judgment entry issued December 5, 2018, the court continued the protective supervision
and approved a case plan.
{¶ 6} The case then came up again for dispositional review on April 2, 2019. The
court again continued protective supervision and the case plan.
{¶ 7} Beginning on May 7, 2019, father filed a flurry of motions for change of
parenting time. On May 29, 2019, he filed a motion for change of parenting time and a
separate motion to modify custody.
{¶ 8} Father also filed motions to modify visitation on June 7, July 17, and
July 23, 2019. On July 23, 2019, the matter came on for dispositional review, and the
court continued protective supervision and the case plan.
{¶ 9} The case again came on for disposition review on September 3, 2019, and
protective supervision was continued.
{¶ 10} On October 22, 2019, father’s pending motions, along with the
dispositional review came before the court for trial.
{¶ 11} However, before the trial commenced, the parties reached an agreement on
all matters.
{¶ 12} At the hearing, ECDJFS articulated a detailed plan for the father to
continue with supervised visitation, graduating overtime to unsupervised visitation, and
subsequently overnight visitation, and then ultimately to a schedule of visitation pursuant
to the court’s standard order.
3. {¶ 13} In court, appellant was actively engaged in the discussion of holiday
visitation, particularly Christmas and Christmas Eve. The record demonstrates that he
understood the terms of the agreement.
{¶ 14} Under the agreement that was read into the record, ECDJFS would
eventually terminate its protective supervision. On November 5, 2019, the trial court
issued an order setting forth the visitation schedule ordering mother’s temporary custody
terminated and granting her legal custody. The court issued similar orders with respect to
the other children. These appeals followed.
Argument
{¶ 15} In his first assignment of error, father argues that the trial court erred in
accepting the agreement of the parties without first advising him of the parental rights
that he was waiving. He does not dispute that he agreed to the settlement as read into the
record or that he misunderstood any of its terms.
{¶ 16} In support of his argument, he implores this court to impose a new standard
in change of legal custody cases that, heretofore, have been reserved for the domain of
permanent termination of custody proceedings. Specifically, he argues that in change of
custody cases, the trial court should engage in a personal meaningful colloquy with the
parent prior to approval of any agreement. He cites to our case of Elmer v. Lucas Cty.
Children Serv. Bd., 36 Ohio App.3d 241, 523 N.E.2d 540 (6th Dist.1987). But the facts
and legal considerations involved in Elmer are quite distinct from the facts herein. In that
case, the agency was seeking permanent custody of the minor children. The appellant
4. had entered into an agreement in which he was permanently waiving his parental rights.
And further, the hearing in Elmer was at an adjudicatory stage, which clearly invoked the
advisement requirements of Juv.R. 29. The adjudicatory proceeding in this case took
place when the juvenile court adjudicated the children as dependent and granted ECDJFS
emergency protective supervision on October 2, 2018. That determination and those
proceedings are not part of this appeal.
{¶ 17} In this case, the complaints filed by ECDJFS were seeking a finding of
neglect/dependency under R.C. 2151.27. While permanent termination of parental rights
is a dispositional option for the court under R.C. 2151.353(A)(4), it was not being sought
at the October 22, 2019 hearing, nor was it contemplated in the agreement that was read
into the record.
{¶ 18} The trial in this instance came before the court on appellant’s own
numerous motions concerning visitation and custody modification, not for trial involving
permanent termination of his parental rights.
{¶ 19} The October 22, 2019 hearing was, therefore, dispositional in nature which
was governed by Juv.R. 34 and R.C. 2151.353. The only advisement and colloquy
required under either the rule or statute at a dispositional hearing of this nature is the
advisement of the right to appeal, pursuant to Juv.R. 34(J).
{¶ 20} The detailed record of this agreement concerning appellant’s rights of
visitation was read into the record with appellant and his counsel present. The agreement
envisioned a gradual expansion of his visitation and would eventually culminate with a
5. standard court schedule of visitation. At no point in this proceeding was permanent
termination of appellant’s parental rights even contemplated or implicated.
{¶ 21} Therefore, upon consideration of the record, statutes and case law, we
cannot find appellant’s first assignment of error to be well-taken and it is hereby denied.
{¶ 22} Appellant’s second assignment of error seeks reversal because the court
failed to determine that the agreement concerning the custody was in the best interests of
the children.
{¶ 23} After a court adjudicates a child abused, neglected, or dependent, the court
then has a menu of dispositional alternatives at the ready, including, among other things,
granting legal custody to a relative or any other person who petitioned for legal
custody. See R.C. 2151.353(A).
{¶ 24} A determination of a child’s best interest remains the primary standard to be
applied in custody cases. In re A.W., 6th Dist. Lucas No. L-10-1257, 2011-Ohio-1267,
¶ 15, citing In re Pryor, 86 Ohio App.3d 327, 332, 620 N.E.2d 973 (4th Dist.1993). When
a court chooses among the dispositional options, the best interest of the child is the
primary consideration. In re E.R.M., 1st Dist., Hamilton, C-190391, 2020-Ohio-2806,
¶ 13.
{¶ 25} The trial court in this instance did not make any finding as to whether the
disposition of these cases and the agreement concerning custodial determinations are in
the best interest of the children. Appellee ECDJFS also concedes this point.
6. {¶ 26} Therefore, we find the second assignment of error to be well-taken and
granted.
{¶ 27} Considering our disposition of the second assignment of error, we find
appellant’s third assignment of error concerning ineffective assistance of counsel to be
moot.
Conclusion
{¶ 28} The judgment of the Erie County Court of Common Pleas, Juvenile
Division, is affirmed, in part, and reversed, in part.
{¶ 29} We hereby reverse and remand this case to the trial court for a
determination of whether the disposition of the legal custody pursuant to the agreement
of the parties is in the best interest of the children. The costs of this appeal are to be split
equally between the parties pursuant to App.R. 24(A).
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
7. In re J.B. C.A. Nos. E-19-068 E-19-069 E-19-070
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.