[Cite as In re the Matter of T.A.H., 2015-Ohio-3997.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: T.A.H. : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 15CA21 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2012-DEP-00156
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 25, 2015
APPEARANCES:
For Father For RCCS
JAMES L. BLUNT, II. EDITH A. GILLILAND 3954 Industrial Parkway Drive RCCS Shelby, OH 44875 731 Scholl Road Mansfield, OH 44907
For Appellee For Child JEFFREY STIFFLER M. LORE WHITNEY
GUARDIAN AD LITEM DALE M. MUSILLI Richland County, Case No. 15CA21 2
Gwin, P.J.
{¶1} Appellant Richland County Children Services Board ["RCCSB"] appeals
from the March 11, 2015 decision of the Richland County Court of Common Pleas,
Juvenile Division Court’s decision denying its motion to modify temporary custody of
child T.A.H. to permanent custody and ordering that temporary custody continue.
Facts and Procedural History
{¶2} The minor child, T.A.H. came into agency custody via emergency shelter care
on November 9, 2012, one week after her premature birth on November 2, 2012.
{¶3} On December 20, 2012, both parents appeared in court and admitted to
facts and circumstances resulting in the child being adjudicated a dependent child. The
Magistrate filed her decision on disposition on March 19, 2013, finding that the child
could not be placed with either parent, even with a protective supervision order and
granted temporary custody to RCCSB.
{¶4} The permanent custody trial was heard over four days of trial. At the
conclusion of trial, the trial court made the following observations.
{¶5} The child has been out of the parents' custody and care for essentially the
entire life of the child. Notwithstanding said extended out-of-home placement into a
foster-to-adopt home, the child's parents regularly exercised their parenting
time/visitation with the child to the extent that the case plan and any amendments
thereto permitted. Originally the parenting time/visitation consisted of three two-hour
visits per week, two at the RCCSB agency premises and one in the Flout home, all
supervised by authorized agency adults. Currently, the parenting time/visitation consists Richland County, Case No. 15CA21 3
of two five-hour visits each week, both times at the [parents] home, supervised formally
or informally.
{¶6} Throughout the more than two years of the child's out-of-home placement
the child's parents continued to make progress on their case plans, while the child's
health continued to improve. RCCSB expressly recognized these gains of the parents
by twice expressly affirming the same in its request for extensions of the temporary
custody orders; and by extending parenting time opportunities, albeit under supervised
visitation.
{¶7} The child's health has progressively improved over the pendency of this
case. Over time, the parents have also demonstrated increased progress in their skills
and abilities to adequately care for the child.
{¶8} After hearing the evidence, the trial court found that RCCSB had failed to
establish, by clear and convincing evidence, that it was in the best interest of the minor
child that permanent custody be granted. In addition, the Court also indicated that if it
would grant RCCB's motion, it would violate the parent's Due Process rights. The trial
court found,
This "risk of erroneous deprivation" of the [parents']' constitutionally-
protected interest arises, under the unique facts of this case, by reason of
RCCSB wanting the Court to terminate the [parents'] parental rights at the
end of the two-year period specified under O.R.C. 2151.415, instead of
affording the [parents] additional time within which to demonstrate that
they have sufficient means, skill, ability, and commitment to care for their
child. Again; through no fault of their own, in following RCCSB's case plan Richland County, Case No. 15CA21 4
the [parents] were simply not afforded sufficient time and opportunity to
determine if they could reach a threshold of responsible and appropriate
care as to permit the child to return home, In light of the enormous "risk of
erroneous deprivation" of the constitutionally-protected interest herein,
occasioned by the limitations of the case plan and Ohio law as applied to
the unique facts of this case, fundamental fairness demands that the
[parents] be afforded additional time, services, and opportunity to
demonstrate their parental fitness to care for their child.
{¶9} The trial court found the element of "12/22" months has been stipulated by
the parties and meets the legal requirements of R.C. 2151 A14 (B)(1)(d).
{¶10} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(1) factor
by clear and convincing evidence as a reason not to return the child home.
{¶11} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(4) factor
by clear and convincing evidence as a reason not to return the child home.
{¶12} The trial court found that each parent demonstrated adequate parental
commitment to the child "when able to do so." The court further noted,
The child's health has progressively improved over the past twenty-
seven months. Over this same period of time the [parents] have also
demonstrated increased progress in their skills and abilities to adequately
care for the child, However, notwithstanding the improved health of the
child and the improved child-caring skills/abilities of the parents, the
[parents] have been prevented by the case plan from having the
opportunity to demonstrate their child-caring skills and abilities over more Richland County, Case No. 15CA21 5
frequent and longer periods of time, and this, too, through no fault of these
parents. It is this Court's concerted opinion that to terminate the parental
rights of the [parents] at this time, under the unique facts of this case,
would deny them of a fair and reasonable opportunity to ameliorate the
conditions which led to the child's removal and continued out-of-home
placement and, as such, would constitute a violation of the due process
clause of the Fourteenth Amendment of the U.S. Constitution and Article
1, Section 16 of the Ohio Constitution.
Notwithstanding the Court's finding above, the limitations of the
case plan as noted above do not ipso facto translate into a failure of
RCCSB to have met the "reasonable efforts" requirement of O.R.C.
§2151.419. The Court is simply opining that, under the unique facts of this
case, the two-year limitation of O.R.C. §2151.415(D)(4) has not afforded
the [parents] sufficient time within which to demonstrate their capability to
care for their improving child; that to grant termination of parental rights at
this time would fail to meet the fairness threshold of the due process
clause of the Fourteenth Amendment.
Assignments of Error
{¶13} RCCSB raises four assignments of error,
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[Cite as In re the Matter of T.A.H., 2015-Ohio-3997.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: T.A.H. : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 15CA21 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2012-DEP-00156
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 25, 2015
APPEARANCES:
For Father For RCCS
JAMES L. BLUNT, II. EDITH A. GILLILAND 3954 Industrial Parkway Drive RCCS Shelby, OH 44875 731 Scholl Road Mansfield, OH 44907
For Appellee For Child JEFFREY STIFFLER M. LORE WHITNEY
GUARDIAN AD LITEM DALE M. MUSILLI Richland County, Case No. 15CA21 2
Gwin, P.J.
{¶1} Appellant Richland County Children Services Board ["RCCSB"] appeals
from the March 11, 2015 decision of the Richland County Court of Common Pleas,
Juvenile Division Court’s decision denying its motion to modify temporary custody of
child T.A.H. to permanent custody and ordering that temporary custody continue.
Facts and Procedural History
{¶2} The minor child, T.A.H. came into agency custody via emergency shelter care
on November 9, 2012, one week after her premature birth on November 2, 2012.
{¶3} On December 20, 2012, both parents appeared in court and admitted to
facts and circumstances resulting in the child being adjudicated a dependent child. The
Magistrate filed her decision on disposition on March 19, 2013, finding that the child
could not be placed with either parent, even with a protective supervision order and
granted temporary custody to RCCSB.
{¶4} The permanent custody trial was heard over four days of trial. At the
conclusion of trial, the trial court made the following observations.
{¶5} The child has been out of the parents' custody and care for essentially the
entire life of the child. Notwithstanding said extended out-of-home placement into a
foster-to-adopt home, the child's parents regularly exercised their parenting
time/visitation with the child to the extent that the case plan and any amendments
thereto permitted. Originally the parenting time/visitation consisted of three two-hour
visits per week, two at the RCCSB agency premises and one in the Flout home, all
supervised by authorized agency adults. Currently, the parenting time/visitation consists Richland County, Case No. 15CA21 3
of two five-hour visits each week, both times at the [parents] home, supervised formally
or informally.
{¶6} Throughout the more than two years of the child's out-of-home placement
the child's parents continued to make progress on their case plans, while the child's
health continued to improve. RCCSB expressly recognized these gains of the parents
by twice expressly affirming the same in its request for extensions of the temporary
custody orders; and by extending parenting time opportunities, albeit under supervised
visitation.
{¶7} The child's health has progressively improved over the pendency of this
case. Over time, the parents have also demonstrated increased progress in their skills
and abilities to adequately care for the child.
{¶8} After hearing the evidence, the trial court found that RCCSB had failed to
establish, by clear and convincing evidence, that it was in the best interest of the minor
child that permanent custody be granted. In addition, the Court also indicated that if it
would grant RCCB's motion, it would violate the parent's Due Process rights. The trial
court found,
This "risk of erroneous deprivation" of the [parents']' constitutionally-
protected interest arises, under the unique facts of this case, by reason of
RCCSB wanting the Court to terminate the [parents'] parental rights at the
end of the two-year period specified under O.R.C. 2151.415, instead of
affording the [parents] additional time within which to demonstrate that
they have sufficient means, skill, ability, and commitment to care for their
child. Again; through no fault of their own, in following RCCSB's case plan Richland County, Case No. 15CA21 4
the [parents] were simply not afforded sufficient time and opportunity to
determine if they could reach a threshold of responsible and appropriate
care as to permit the child to return home, In light of the enormous "risk of
erroneous deprivation" of the constitutionally-protected interest herein,
occasioned by the limitations of the case plan and Ohio law as applied to
the unique facts of this case, fundamental fairness demands that the
[parents] be afforded additional time, services, and opportunity to
demonstrate their parental fitness to care for their child.
{¶9} The trial court found the element of "12/22" months has been stipulated by
the parties and meets the legal requirements of R.C. 2151 A14 (B)(1)(d).
{¶10} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(1) factor
by clear and convincing evidence as a reason not to return the child home.
{¶11} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(4) factor
by clear and convincing evidence as a reason not to return the child home.
{¶12} The trial court found that each parent demonstrated adequate parental
commitment to the child "when able to do so." The court further noted,
The child's health has progressively improved over the past twenty-
seven months. Over this same period of time the [parents] have also
demonstrated increased progress in their skills and abilities to adequately
care for the child, However, notwithstanding the improved health of the
child and the improved child-caring skills/abilities of the parents, the
[parents] have been prevented by the case plan from having the
opportunity to demonstrate their child-caring skills and abilities over more Richland County, Case No. 15CA21 5
frequent and longer periods of time, and this, too, through no fault of these
parents. It is this Court's concerted opinion that to terminate the parental
rights of the [parents] at this time, under the unique facts of this case,
would deny them of a fair and reasonable opportunity to ameliorate the
conditions which led to the child's removal and continued out-of-home
placement and, as such, would constitute a violation of the due process
clause of the Fourteenth Amendment of the U.S. Constitution and Article
1, Section 16 of the Ohio Constitution.
Notwithstanding the Court's finding above, the limitations of the
case plan as noted above do not ipso facto translate into a failure of
RCCSB to have met the "reasonable efforts" requirement of O.R.C.
§2151.419. The Court is simply opining that, under the unique facts of this
case, the two-year limitation of O.R.C. §2151.415(D)(4) has not afforded
the [parents] sufficient time within which to demonstrate their capability to
care for their improving child; that to grant termination of parental rights at
this time would fail to meet the fairness threshold of the due process
clause of the Fourteenth Amendment.
Assignments of Error
{¶13} RCCSB raises four assignments of error,
{¶14} "I. THE TRIAL COURT'S RULING CONTINUING TEMPORARY
CUSTODY WITH THE AGENCY WAS THE RESULT OF A MISAPPLICATION OF THE
STATUTORY FACTORS REQUIRED TO BE EXAMINED IN RC. 2151.414 Richland County, Case No. 15CA21 6
RESULTING IN A RULING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND AN ABUSE OF DISCRETION.
{¶15} "II. THE TRIAL COURT'S CONCLUSION FINDING REASONABLE
EFFORTS WERE MADE, YET HOLDING THOSE EFFORTS AND THE CASE PLAN
VIOLATED PARENT'S CONSTITUTIONAL DUE PROCESS RIGHTS IS MISPLACED,
CONTRADICTORY AND NOT SUPPORTED BY RELEVANT AUTHORITY; THUS
RESULTING IN AN ABUSE OF DISCRETION.
{¶16} "III. THE TRIAL COURT'S FAILURE TO ISSUE A LEGALLY
PERMISSIBLE DISPOSITIONAL ORDER AT THE CONCLUSION OF THE
STATUTORY "SUNSET" TIME LIMIT RESULTS IN TERMINATION OF TEMPORARY
CUSTODY BY OPERATION OF LAW AND CONSTITUTES AN ABUSE OF
DISCRETION.
{¶17} "IV. TRIAL COURT'S FAILURE TO PERMIT THE MAGISTRATE WHO
HANDLED CASE TO HEAR THE PERMANENT CUSTODY TRIAL, WHEN
MAGISTRATE WAS AVAILABLE WITHIN THE WEEK WAS ERROR PURSUANT TO
JUV. R. 34(B)(1) AND R.C. 2151.35(13)(2)(A)."
A. Jurisdiction of Court of Appeals
{¶18} Before reaching the merits of the appeal, we must address the threshold
issue of whether the judgment appealed is a final, appealable order. Appellees1 have
raised an issue that the appeal herein is premature. We agree.
{¶19} Even if a party does not raise the issue, this court must address, sua
sponte, whether there is a final appealable order ripe for review. State ex rel. White vs.
1 Father has filed a motion to dismiss; mother raises the issue in her brief on the merits. Richland County, Case No. 15CA21 7
Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.
Thus, we shall first consider whether this court has jurisdiction over appellant's appeal.
{¶20} Appellate courts have jurisdiction to review the final orders or judgments of
lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.
If a lower court's order is not final, then an appellate court does not have jurisdiction to
review the matter and the matter must be dismissed. General Acc. Ins. Co. vs.
Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v.
Conrad, 12th Dist. Warren No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be
final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable,
Civ. R. 54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999);
Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d
282(9th Dist.). If an order is not final and appealable, an appellate court has no
jurisdiction to review the matter and it must be dismissed.
{¶21} In In re Adams, 115 Ohio St.3d 86, 2007–Ohio–4840, 873 N.E.2d 886, a
trial court denied a children-services agency’s motion to modify an order granting it
temporary custody to an order of permanent custody. The agency then appealed and
the appellate court dismissed the agency’s appeal of the denial for lack of a final,
appealable order. The Ohio Supreme court affirmed. The Ohio Supreme Court held that
a children services agency did not have a substantial right in the permanent custody of
children based on the fact that the agency had temporary custody of children. The Ohio
Supreme Court further held, in relevant part, as follows: “A trial court order denying the
motion of a children-services agency to modify temporary custody to permanent custody
and continuing temporary custody is not a final, appealable order under R.C. Richland County, Case No. 15CA21 8
2505.02(B)(1) or (2).” Id. at ¶ 35. The court in such case noted, “The continuation of the
agency’s temporary custody does not determine the outcome of the action for neglect
and dependency. Instead, all parties remain subject to further court order during the
temporary-custody phase. A juvenile court has several ultimate dispositional options
pursuant to R.C. 2151.415(A), and ordering the continuation of temporary custody does
not preclude the juvenile court from exercising any of these options.” Id. Accord,
Richland Cty. Children Services Board v. Adam, 5th Dist. Richland No. 2011CA0071,
2012-Ohio-2596.
{¶22} RCCSB further argues that the trial court’s extension of temporary custody
beyond the limitations of R.C. 2151.415(D)(4) renders the juvenile court’s denial of its
permanent custody motion a final appealable order. We disagree. In re D.J. 8th Dist.
Cuyahoga No. 101180, 2014-Ohio-2778, ¶4.
{¶23} A parent “is not entitled to immediate custody of [the child] because of the
sunset provision contained in R.C. 2151.353(F).” Holloway v. Clermont County Dept. of
Human Servs., 80 Ohio St.3d 128, 130, 684 N.E.2d 1217 (1997). The Supreme Court of
Ohio has held that temporary custody is terminated upon the passing of this “sunset
date” when no motion pursuant to R.C. 2151.415(A) is filed. In re Young Children, 76
Ohio St.3d 632, 637, 669 N.E.2d 1140 (1996). The passing of that date does not,
however, divest the juvenile court of jurisdiction. Id. In such a case, the juvenile court
must determine whether the problems that led to the original grant of temporary custody
had been resolved or sufficiently mitigated as of the sunset date when the temporary
custody order would have otherwise terminated. If these problems have been resolved
or mitigated, the court should terminate the temporary custody order and release the Richland County, Case No. 15CA21 9
children to their mother. Id. at 639, 669 N.E.2d 1140. If not, and if it is in the best
interest of the children to remain in such custody, the case may continue. In re A.W., 4th
Dist. No. 07CA14, 2008–Ohio–718, ¶ 8. Accord, State ex rel. Mowen v. Mowen, 119
Ohio St.3d 462, 2008-Ohio-4759, 895 N.E.2d 163, ¶¶ 14-15; State ex rel. Tucker v.
Grendell, 11th Dist. Geauga No. 2012-G-3125, 2013-Ohio-539, ¶¶11-12; In re J.W.,
10th Dist. Franklin No. 07AP-791, 2008-Ohio-1423, ¶8; In re M.B., 9th Dist. Summit No.
22103, 2004-Ohio-5686, ¶47; In re N.B., 8th Dist. Cuyahoga No. 81392, 2003-Ohio-
3656, ¶¶11-13; In re McCallum, 5th Dist. Tuscarawas No. 2006AP070042, 2007-Ohio-
995, ¶12; In re C.J.L., 4th Dist. Scioto No. 13CA3545, 2014-Ohio-1766, ¶22.
{¶24} In accordance with all of the foregoing, the order denying the motion of
RCCSB to modify temporary custody to permanent custody and continuing temporary
custody is not a final, appealable order under R.C. 2505.02(B)(1) or (2).
{¶25} Appeal dismissed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur