In re T.R.

896 N.E.2d 1003, 120 Ohio St. 3d 136
Ohio Supreme Court·Decided October 14, 2008·No. No. 2008-0401·Published·Cited by 32 cases

Opinions

Moyer, C.J.

I

{¶ 1} The Second District Court of Appeals has certified this case pursuant to Section 3(B)(4), Article IV, Ohio Constitution and App.R. 25. The court of appeals found its judgment to be in conflict with the judgments of the Fifth District Court of Appeals in In re McCutchen (Mar. 8, 1991), Knox App. No. 90-CA-25, 1991 WL 34881, and the Twelfth District Court of Appeals in In re Cavender (Mar. 19, 2001), Madison App. No. CA2000-06-37, 2001 WL 277245, on the following issue: “Does R.C. 2151.413(E) require a children services board to file an adoption plan with the court, prior to the court granting permanent custody of a minor child?”

{¶ 2} For the following reasons, we answer the question in the negative and reverse the judgment of the court of appeals.

II

{¶ 3} In December 2003, appellant, Montgomery County Department of Job and Family Services — Children Services Division (“the department”), removed appellee S.H.’s four children from her home based on concerns about the condition of the home and neglect of the children. Shortly thereafter, the juvenile court magistrate granted interim temporary custody to the department. [137] The department developed a case plan for the children pursuant to R.C. 2151.412(A)(2), with the ultimate goal of family reunification, and presented it to the juvenile court. The court approved the case plan and granted the department temporary custody of the children in the meantime.

{¶ 4} The department twice moved to have temporary custody extended while it pursued the goal of family reunification; the juvenile court granted both requests. The department eventually moved for permanent custody of the children pursuant to R.C. 2151.413(D)(1), alleging that S.H. had not met all of the objectives set forth in the case plan and that permanent custody by the department was in the best interest of the children. The magistrate determined that there was clear and convincing evidence to support the department’s request. The juvenile court overruled S.H.’s objections to this decision and granted the department permanent custody.

{¶ 5} On appeal, S.H. argued, inter alia, that permanent custody could not be granted, because the department had failed to comply with R.C. 2151.413(E), which requires a children-serviees agency that files a motion for permanent custody to update the child’s case plan to include a specific plan for adoption of the child. S.H. asserted that this statute required the department to update the case plan to include adoption plans before its motion for permanent custody was granted and that it did not do so. The department responded by citing several court of appeals decisions, including In re McCutchen, Knox App. No. 90-CA-25, 1991 WL 34881, and In re Cavender, Madison App. No. CA2000-06-37, that held that the adoption plan update need not be filed until after the court grants the motion for permanent custody.

{¶ 6} The court of appeals agreed with S.H., stating, “The purpose of the case plan for adoption required by R.C. 2151.413(E) is to allow the court to consider the child’s prospects for adoption if the motion [for permanent custody] is granted, which is a matter that directly relates to the best interest of the child at issue.” In re T.R., Montgomery App. No. 22291, 2007-Ohio-6593, 2007 WL 4305689, ¶27. Although the court of appeals determined in its analysis of a separate assignment of error that the juvenile court’s decision to grant permanent custody was not against the manifest weight of the evidence, it nonetheless held that the juvenile court erred in granting the motion for permanent custody because the department had not complied with R.C. 2151.413(E), and it remanded the cause for further proceedings. Id. at ¶ 40, 42.

{¶ 7} The court of appeals determined that its judgment conflicted with the judgments of the Fifth District Court of Appeals in In re McCutchen and the Twelfth District Court of Appeals in In re Cavender and certified the case as a conflict to this court. We determined that a conflict exists.

[138] Ill

{¶ 8} This case requires us to review R.C. 2151.413(E) and determine whether a children-services agency must file an adoption plan before its motion for permanent custody is considered, or whether it may do so after the motion is granted. When we engage in statutory interpretation, we must first examine the plain language of the statute. See State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. If the language is clear and unambiguous, we must apply the statute as written. Id.

{¶ 9} R.C. 2151.413(E) states that “[a]ny agency that files a motion for permanent custody under this section shall include in the case plan of the child who is the subject of the motion, a specific plan of the agency’s actions to seek an adoptive family for the child and to prepare the child for adoption.” (Emphasis added.) As the emphasized language reveals, the statute plainly requires a children-services agency that files a motion for permanent custody to include an adoption plan in the child’s case plan.

{¶ 10} R.C. 2151.413(E) does not state a temporal requirement, though; it does not say when such an adoption plan must be added to the existing case plan. A related Administrative Code provision, Ohio Adm.Code 5101:2-42-95(D), does provide temporal language: “At the time a motion is filed with the court to obtain permanent custody of the child, the [children-services agency] shall submit a case plan to the court which includes a specific plan to seek an adoptive family * * (Emphasis added.) However, R.C. 2151.413(F) limits the Department of Job and Family Services’ rulemaking authority to adopting rules “that set forth the time frames for case reviews and for filing a motion requesting permanent custody under [R.C. 2151.413(D)(1) ].” Because Ohio Adm.Code 5101:2-42-95(D) exceeds the scope of this authority by adding a timeline to the adoption-plan process in R.C. 2151.413(E), as opposed to the time for filing a motion for permanent custody itself under R.C. 2151.413(D)(1), it is invalid and therefore cannot fill the gap left by the statute. See Amoco Oil Co. v. Petroleum Underground Storage Tank Release Comp. Bd. (2000), 89 Ohio St.3d 477, 480, 733 N.E.2d 592 (noting that administrative agencies “must adopt rules within the standards provided by the General Assembly in order for the rules to be valid”).

{¶ 11} We are left, then, with a statute that does not indicate when children-services agencies are required to update case plans in these circumstances. The General Assembly could have easily created a timeline in R.C. 2151.413(E) by stating that “any agency that files a motion for permanent custody under this section shall, at the time it files the motion or before the court holds a hearing on the motion, include in the case plan” an adoption plan, but it did not do so. We will apply the statute as written.

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In re T.R., 896 N.E.2d 1003, 120 Ohio St. 3d 136 (Ohio 2008).

896 N.E.2d 1003 (In re T.R.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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