In re S.H.

2025 Ohio 655

• Court: Ohio Court of Appeals
• Decided: February 27, 2025
• Docket: 114503
• Status: Published

Opinion

[Cite as In re S.H., 2025-Ohio-655.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE S.H. : : No. 114503 A Minor Child : : [Appeal by Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 27, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-21908592

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellant.

Patrick S. Lavelle, for appellee.

EMANUELLA D. GROVES, P.J.:

Plaintiff-appellant Cuyahoga County Division of Children and Family

Services (“CCDCFS” or “the agency”) appeals the juvenile court’s decision denying

its motion to terminate temporary custody of S.H., d.o.b. September 3, 2007, after

she was committed to the custody of the Department of Youth Services (“DYS”). For the reasons that follow, we reverse the decision of the juvenile court and remand for

further proceedings.

Procedural and Factual History

The agency became involved with the family in 2021 based on

allegations of neglect. On November 21, 2023, S.H. was committed to the temporary

custody of the agency. “‘Temporary custody’ means legal custody of a child who is

removed from the child’s home . . .” R.C. 2151.011(B)(57). Subsequently, S.H. was

charged in two delinquency matters. After a trial on October 3, 2024, S.H. was found

delinquent of aggravated menacing, a felony of the fifth degree, and two counts of

theft, misdemeanors of the first degree, in one case; and assault, a felony of the fifth

degree and disorderly conduct, a minor misdemeanor, in the second case. In each

case, the juvenile court committed S.H. to the legal custody of DYS for a minimum

period of six months and a maximum period until her 21st birthday, with the

commitments to run concurrently.

On October 4, 2024, the agency filed a motion to terminate temporary

custody due to S.H.’s commitment to DYS citing this court’s decisions in In re

K.M.P., 2022-Ohio-466 (8th Dist.), and In re J.C., 2022-Ohio-4520 (8th Dist.). The

juvenile court denied the motion. CCDCFS appeals and assigns the following error

for our review:

Assignment of Error

The trial court order continuing in effect the custodial order of temporary custody for the subject child is contrary to law. Preliminarily, we note that S.H.’s mother, S.L.-G., has filed a notice of

conceded error pursuant to Loc.App.R. 16(B) acknowledging her belief that CCDCFS

is correct that the trial court erred in denying the motion to terminate temporary

custody. A notice of conceded error does not remove this court’s responsibility to

review the record to determine whether reversible error has in fact occurred. See

State v. Armstrong, 2017-Ohio-8070, ¶ 1 (8th Dist.); Cleveland v. Patterson, 2020-

Ohio-1628, ¶ 6 (8th Dist.). We review a juvenile court’s decision regarding

temporary custody for an abuse of discretion. In re B.J., 2017-Ohio-315, ¶ 15 (8th

Dist.). A court abuses its discretion when its decision is unreasonable, arbitrary, or

unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

However, in our previous decisions, this court recognized that the question of

whether CCDCFS and DYS can both have legal custody of a child is an issue of law

that this court reviews de novo. In re J.C. at ¶ 6. “[W]here a specific action, ruling

or order of the court is required as a matter of law, involving no discretion, the test

of ‘abuse of discretion’ should have no application.” Johnson v. Abdullah, 2021-

Ohio-3304, ¶ 37, quoting Rohde v. Farmer, 23 Ohio St.2d 82, 89 (1970).

Next, we note that there are very few cases in this district that address

this issue. In re K.M.P. and In re J.C. address this issue directly and are utilized in

our analysis. Notably, this court addressed a similar issue in In re J.B., 2022-Ohio-

946 (8th Dist.). However, J.B. is distinguishable from the cases cited and the case

before us. Although that case raised a similar issue, this court did not reach the

merits of the question of whether DYS and CCDCFS could simultaneously hold custody. Instead, we found that the agency’s decision to file a notice of termination

rather than filing a motion to request termination of custody was improper. Id. at

¶ 10. Additionally, J.B. involved a child who was committed to a planned permanent

living arrangement, a status that was not addressed in the other cases. Accordingly,

we turn to the merits of this case.

As a court of limited jurisdiction, the juvenile court takes its powers

solely from statutes. K.M.P., 2022-Ohio-466 (8th Dist.), citing Carnes v. Kemp,

2004-Ohio-7107, ¶ 25. The statutes that define the term “legal custody” to DYS and

to a children services agency are almost identical. R.C. 2151.011(B)(21); R.C.

5139.01(A)(3); See K.M.P. at ¶ 7, 9.

For instance, both statutes empower the respective agencies to

determine where the juvenile lives, and provide the child with, among other things,

shelter, education, and medical care. As this court has noted, while the Ohio Revised

Code empowers the juvenile court to place a child in the legal custody of DYS or

CCDCFS, the Code does not authorize the court to place the juvenile in the custody

of both simultaneously. K.M.P. at ¶ 10. While K.M.P. dealt with a court order that

simultaneously gave legal custody to DYS and CCDCFS, the facts of this case are

almost exactly the same as the facts of In re J.C., 2022-Ohio-4520 (8th Dist.), in that

they both involve the denial of the agency’s motion to terminate temporary custody

after the child was committed to the legal custody of DYS. Here, as in that case, we

again find that it was error for the juvenile court to deny CCDCFS’s motion to terminate temporary custody after the child was committed to the legal custody of

DYS, in line with this court’s past precedent.

Accordingly, the agency’s assignment of error is sustained.

Judgment reversed and case remanded.

It is ordered that the parties split the 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.

EMANUELLA D. GROVES, PRESIDING JUDGE

ANITA LASTER MAYS, J., and DEENA R. CALABRESE, J., CONCUR