K.L. v. Franklin Cnty. Children Servs. , 106 N.E.3d 1286 ( 2018 )

[Cite as In re: K.L., 2018-Ohio-3139.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
[K.L.], : No. 18AP-150
(C.P.C. No. 16JU-13584)
v. :
(REGULAR CALENDAR)
[Franklin County Children Services, :
Appellant]. :
In the Matter of: :
[C.B.], : No. 18AP-151
(C.P.C. No. 16JU-13583)
v. :
(REGULAR CALENDAR)
[Franklin County Children Services, :
Appellant]. :
D E C I S I O N
Rendered on August 7, 2018
On brief: William T. Cramer, for K.L.
On brief: Bringman Legal Co., L.P.A., and William Paul
Bringman, for appellee J.L.
On brief: Robert J. McClaren, and Jaqueline J. Rapier, for
appellant Franklin County Children Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROWN, P.J.
{¶ 1} Franklin County Children Services ("FCCS"), appellant, appeals from the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Nos. 18AP-150 and 18AP-151 2
Juvenile Branch, in which the court temporarily restrained FCCS from placing K.L. and
C.B. (collectively, "the children"), in a foster home or kinship placement outside of
Franklin County, Ohio, or an adjoining county, until further order.
{¶ 2} Mother and K.L.'s father are the parents of K.L. Mother and C.B.'s father are
the parents of C.B. The children were adjudicated neglected and dependent minors. On
April 12, 2017, FCCS filed for permanent court commitment ("PCC") with regard to both
children. During the period in question, the children were in kinship placement, but that
placement was disrupting. There were maternal relatives in Texas interested in the
placement of the children. Mother objected to the children moving to Texas. FCCS
contended the Texas placement was the least restrictive placement, and it would continue
its efforts to have all parents maintain consistent visitation with the children even if they
were placed in Texas. On December 9, 2017, K.L.'s father filed for custody of K.L.
{¶ 3} On January 4, 2018, the court held a hearing for mother to present evidence
opposing placement in Texas. On January 5, 2018, the court held a shelter-care hearing.
At these hearings, evidence was presented that mother objected to placement in Texas,
but both children wanted to be placed with relatives in Texas rather than being placed in
foster care.
{¶ 4} Consequently, on February 2, 2018, the court issued an order in which it,
among other things, temporarily restrained FCCS from placing the children in a foster
home or kinship placemen outside of Franklin County, or an adjoining county, until
further order. FCCS appeals the trial court's judgment, asserting the following
assignments of error:
[I.] R.C. 2151.353(A)(2), which allows the court to place a
child into the custody of FCCS, does not contain any provision
that allows the court to designate a specific placement for the
child nor does it allow the court to restrict placement as a
means to control the placement of the child. Thus, the
Juvenile Court erred and exceeded its statutory authority by
issuing a restrictive placement order which required FCCS to
place the children in Franklin County or an adjoining county,
which resulted in FCCS having to place the children into foster
care when an appropriate relative is available.
[II.] The Juvenile Court violated the doctrine of separation of
powers by ordering FCCS to place or restricting FCCS to place
the children in a specific placement.
Nos. 18AP-150 and 18AP-151 3
{¶ 5} We have requested the parties file supplemental briefs regarding whether
the judgment entry appealed from is a final appealable order, and the parties have done
so. Ohio appellate courts have jurisdiction to review only final appealable orders of trial
courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.01.
If an order is not a final appealable order, the appellate court lacks jurisdiction and the
appeal must be dismissed. Prod. Credit Assn. v. Hedges, 87 Ohio App. 3d 207 (4th
Dist.1993), fn. 2. Appellate courts are tasked with the duty to sua sponte examine any
deficiencies in jurisdiction. Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221.
{¶ 6} An appellate court engages in a two-step process when determining whether
a judgment or order is final and appealable. First, the court must determine whether the
order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C.
2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the
order contains a certification that there is no just reason for delay. Nnadi v. Nnadi, 10th
Dist. No. 15AP-13, 2015-Ohio-3981, ¶ 12, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44
Ohio St. 3d 17, 21 (1989).
{¶ 7} A final order is statutorily defined by R.C. 2505.02, which provides as
follows:
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
***
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment.
{¶ 8} An order of a court is a final appealable order only if the requirements of
both R.C. 2505.02 and, if applicable, Civ.R. 54(B) are met. Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St. 3d 86 (1989), syllabus. However, an order that is not final cannot
be rendered final merely by the addition of Civ.R. 54(B) language. Noble v. Colwell, 44
Ohio St. 3d 92, 96 (1989); Fireman's Fund Ins. Cos. v. BPS Co., 4 Ohio App. 3d 3, 4 (10th
Dist.1982).
Nos. 18AP-150 and 18AP-151 4
{¶ 9} Here, FCCS argues the order appealed from was made in a special
proceeding and affected a substantial right, as contemplated in R.C. 2505.02(B)(2).
While we agree that juvenile court proceedings were not known at common law and, thus,
are special proceedings, see In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840, ¶ 43, we
find the order did not affect a substantial right. A "substantial right," for purposes of R.C.
2505.02, is a legal right entitled to enforcement and protection by law, and one which, if
not immediately appealable, would foreclose appropriate relief in the future. In re T.M.,
12th Dist. No. CA2006-01-001, 2006-Ohio-6548, ¶ 17, 19. The Supreme Court of Ohio has
recognized that "parental custody of a child is an important legal right protected by law
and, thus, comes within the purview of a 'substantial right' for purposes of applying R.C.
2505.02." In re Murray, 52 Ohio St. 3d 155, 157 (1990).
{¶ 10} However, as the court in T.M. explained, "whether an order is final and
appealable turns on the effect that the order has on the pending action, rather than the
name attached to it, or its general nature." Id. at ¶ 18, citing Murray. The purpose of a
final appealable order is to prevent a case from being presented to the court of appeals in
fragments. Id. at ¶ 21, citing Squire v. Guardian Trust Co., 147 Ohio St. 1 (1946), and In re
Boehmke, 44 Ohio App. 3d 125, 128 (8th Dist.1988). To establish that an order affects a
substantial right, the appellant must establish that, in the absence of immediate review of
the order, he or she will be denied effective relief in the future. Id. at ¶ 19, citing State v.
Shaffer, 8th Dist. No. 87552, 2006-Ohio-5563, ¶ 20; Bell v. Mt. Sinai Med. Ctr., 67 Ohio
St.3d 60, 63 (1993); In re Kinstle, 3d Dist. No. 8-97-27 (Mar. 6, 1998).
{¶ 11} In the present case, the entry FCCS appealed resulted from a hearing on the
case plan, a motion for custody by K.L.'s father, FCCS's motion to withdraw its motion for
PCC, and FCCS's motion for an extension of custody of the children. The trial court's
decision prevented FCCS from placing the children outside central Ohio, required K.L.'s
father to complete a psychological evaluation, amended visitation, continued the hearings
on the case plan, and K.L.'s father's motion for custody. None of these motions decided
the case or prevented a judgment. This was an interlocutory order that could change and
be amended by the trial court at any time in the future. The circumstances may change,
and the trial court may modify or eliminate the central Ohio limitation on placement. As
pointed out by K.L.'s counsel, if the case eventually ends with a result in which FCCS
Nos. 18AP-150 and 18AP-151 5
disagrees, FCCS can appeal that determination, and the impact of the trial court's decision
to limit placement to central Ohio at that juncture of the proceedings would be more fully
understood, which would result in a more complete analysis.
{¶ 12} Other courts have addressed whether similar orders were final appealable
orders. For example, in In re T.G., 12th Dist. No. CA2008-01-026, 2008-Ohio-4165, after
adjudicating the child dependent and awarding temporary custody to children services,
the trial court issued another order providing that a case plan be adopted, that the agency
devise a plan to enable the child's parents to participate in the child's treatment and
therapy, and that supervised parental visitation continue to occur in the parents' home.
However, on appeal of that determination, the appellate court found the order was not
final and appealable. The appellate court reasoned the court's order concerned
modification of parental visitation and adoption of a case plan, and such order did not
determine the action and prevent a judgment, as it did not determine the outcome of the
underlying dependency action. The appellate court also found that, with respect to the
court's order concerning adoption of the case plan, such order did not foreclose appellant
from appropriate relief in the future. The court held that, although a later appeal of the
court's visitation order might be "impracticable," Ohio courts have held there is a
compelling need to deny appellate review of such matters to avoid piecemeal litigation
and the resulting delay it causes both parties and the judicial system.
{¶ 13} Similarly, in T.M., the child was adjudicated dependent and a disposition
was entered granting temporary custody to children services. After a dispositional review
hearing, the trial court found reunification would not be in the child's best interest and
ordered children services to modify the goal in the case plan from reunification to a goal
other than reunification with the parents or the grandmother. On appeal by the parents
and the grandmother, the appellate court found the trial court's order was not final and
appealable. The appellate court noted the trial court's order did not change the temporary
custody order or terminate any custody rights but only ordered children services to
amend its stated goal in the case plan from the goal of reunification. The appellate court
found it was clear the trial court's order did not decide the case and prevent a judgment,
and the appellants were not foreclosed from appropriate relief in the future.
Nos. 18AP-150 and 18AP-151 6
{¶ 14} The determinations in T.G. and T.M. are persuasive, and we find their
circumstances analogous to those here. The trial court's order in the present case does not
decide the case and prevent a judgment, and FCCS may obtain appropriate relief in the
future. Therefore, we find the judgment FCCS has appealed from is not a final appealable
order, and we dismiss its appeals.
{¶ 15} Accordingly, FCCS's appeals are dismissed for lack of a final appealable
order.
Appeals dismissed.
SADLER and BRUNNER, JJ., concur.
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