In re W.J.S. , 2019 Ohio 1258 ( 2019 )

[Cite as In re W.J.S., 2019-Ohio-1258.]
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IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
IN RE: W.J.S. and H.C.S. :
: Appellate Case No. 28037
:
: Trial Court Case Nos. 2017-499 &
: 2017-500
:
: (Appeal from Common Pleas Court –
: Juvenile Division)
:
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OPINION
Rendered on the 5th day of April, 2019.
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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Appellee, Montgomery County Children Services
BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 805-H Patterson Road, Dayton, Ohio
45419
Attorney for Appellant, Mother
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WELBAUM, P.J.
{¶ 1} Mother, appeals from a judgment placing her daughter, H.C.S., in a planned
permanent living arrangement (“PPLA”) with the Montgomery County Department of Job
and Family Services, Children Services Division (MCCS). For the following reasons, the
trial court’s judgment will be affirmed.
I. Facts and Course of Proceedings
{¶ 2} On January 26, 2017, MCCS filed complaints in the trial court, alleging that
H.C.S. (born in February 2001) and W.J.S. (born in December 2007) were neglected and
dependent. According to the complaints, MCCS had received referrals about Mother’s
ongoing substance abuse in November and December 2016, and Mother had agreed to
place her children with their maternal aunt (Aunt). However, while the children’s
maternal grandmother was watching both children on January 25, 2017, Mother removed
the children from the grandmother’s care, broke into Aunt’s home, and stole the children’s
belongings. Mother then fled with the children to the Greyhound bus station, where
police located them.
{¶ 3} The complaints also alleged that Mother had tested positive for drugs, that
H.C.S. had truancy issues, and that domestic violence had occurred in Mother’s home
while the children were present. In addition, the complaints alleged that Mother had
substance abuse issues and was unable to care for her children’s needs. MCCS,
therefore, asked for temporary custody of H.C.S. and W.J.S. Alternatively, MCCS asked
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that custody be granted to Aunt. On the day the complaints were filed, a magistrate gave
interim temporary custody of W.J.S to Aunt and interim temporary custody of H.C.S. to
MCCS.
{¶ 4} MCCS then developed a case plan for Mother and the children’s fathers.1
Mother’s objectives included completion of a drug and alcohol assessment and following
any recommendations; completion of parenting and psychological assessments and
following any recommendations; obtaining and maintaining employment and housing and
providing verification of both; attending all legal, medical, therapeutic, and educational
appointments for the children; and signing releases of information as needed for service
providers.
{¶ 5} Following a dispositional hearing in June 2017, the trial court adjudicated
W.J.S. and H.C.S. neglected and dependent. The court then gave MCCS temporary
custody of H.C.S.; Aunt was awarded temporary custody of W.J.S. These temporary
custody orders were scheduled to expire on January 26, 2018.
{¶ 6} In August 2017, MCCS filed a motion asking the court to transfer temporary
custody of W.J.S. to MCCS. In addition, MCCS sought an ex parte order for a grant of
interim temporary custody. These motions were based on difficulties Aunt was having.
As a result, the trial court granted interim temporary custody of W.J.S. to MCCS on August
4, 2017.
{¶ 7} Subsequently, on November 30, 2017, MCCS filed a motion asking the court
to grant it a PPLA for H.C.S. The same day, MCCS sought a first extension of temporary
custody of W.J.S., asking that temporary custody be given either to MCCS or Aunt. The
1 The fathers are not parties to this appeal.
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trial court then scheduled a February 23, 2018 hearing on the motions.
{¶ 8} Shortly before the hearing date, Mother filed a lengthy pro se motion to
dismiss, claiming that her rights had been violated. She also filed a motion to remove
the magistrate and trial judge from the case. On February 21, 2018, the trial court
overruled the motion for removal. The following day, MCCS filed an amended motion in
connection with its request to extend temporary custody. While MCCS still sought a first
extension of its own temporary custody of W.J.S., the amendment alternatively asked the
court to grant legal custody of W.J.S. to Aunt.
{¶ 9} On February 23, 2018, the hearing took place as scheduled. At that time,
the magistrate granted Aunt interim temporary custody of W.J.S., but otherwise continued
the matter until May 17, 2018. On that date, the magistrate held a dispositional hearing
on the amended motion for legal custody of W.J.S. and the motion for a PPLA. At the
hearing, the court heard testimony from Sherree Spence, the ongoing MCCS caseworker
for the family, and from Aunt. During the hearing, MCCS also asked the court to take
judicial notice of the guardian ad litem reports and the prior pleadings in the case. Mother
did not appear for the hearing, and the hearing transcript indicates that Mother previously
had elected to proceed without counsel. Transcript of Proceedings (“Tr.”), pp. 5 and 43.2
{¶ 10} On May 17, 2018, the magistrate filed a decision granting legal custody of
W.J.S. to Aunt and a PPLA to MCCS for H.C.S. At the end of the decision, the magistrate
2 The court had appointed three attorneys for Mother, and the third attorney, as well as
prior counsel, had been discharged due to breakdown in communications between
Mother and the attorney. Case No. 2017-500 Doc. #14, p. 2. When the third attorney
was discharged, Mother did not ask for further appointed counsel. Instead, she said that
she wished to represent herself. Id. The trial court did appoint counsel for the children,
as well as a guardian ad litem, and these attorneys were present at the hearing. See Tr.
at p. 2.
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included an order from the trial court adopting the magistrate’s decision and notifying the
parties of the requirements for objecting to the magistrate’s decision. However, Mother
failed to file objections to the magistrate’s decision and instead filed a notice of appeal on
June 15, 2018. In her sole assignment of error, Mother claims that the trial court “plainly
erred in granting a planned permanent living arrangement for H.C.S. because it did not
make the necessary findings of fact.”
{¶ 11} Mother does not challenge the magistrate’s decision granting legal custody
of W.J.S. to Aunt. Accordingly, that part of the magistrate’s decision will be affirmed
without further discussion.
II. Effect of Failure to File Objections
{¶ 12} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept for a claim of plain error, a
party shall not assign as error on appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of fact or conclusion of law
under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).” “The purpose behind the appellate waiver rule is to
ensure that the trial judge shall have an opportunity to correct any errors occurring in the
trial judge’s court, the only exception being for plain error.” In re M.G. and C.G., 2d Dist.
Miami No. 07-CA-6, 2007-Ohio-3589, ¶ 15. “Thus, the failure to file objections waives
the right to appellate review and precludes relief * * * in the absence of civil plain error.”
In re A.P., 2d Dist. Montgomery No. 28023, 2019-Ohio-139, ¶ 10, citing In re Etter, 134
Ohio App. 3d 484, 731 N.E.2d 694 (1st Dist.1998).
{¶ 13} “ ‘[I]n appeals of civil cases, the plain error doctrine is not favored and may
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be applied only in the extremely rare case involving exceptional circumstances where
error, to which no objection was made at the trial court, seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.’ ” In re A.J.S., 2d Dist. Miami No. 2007
CA 2, 2007-Ohio-3433, ¶ 16, quoting Goldfuss v. Davidson, 79 Ohio St. 3d 116, 679
N.E.2d 1099 (1997), syllabus. Consequently, because Mother failed to file objections to
the magistrate’s decision, we review Mother’s claim only for plain error.
III. Permanent Planned Living Arrangement for H.C.S.
{¶ 14} In its November 2017 motion, MCCS asked the trial court to place H.C.S. in
a PPLA pursuant to R.C. 2151.353, R.C. 2151.415, and R.C. 2151.417. According to
Mother, only R.C. 2151.415 applied in this case, and the trial court plainly erred by failing
to make all the required findings for a PPLA under that statute. In contrast, the State
contends that it could file for a PPLA under either R.C. 2151.353 or R.C. 2151.415, and
that the requirements under R.C. 2151.353(A)(5) were satisfied.
{¶ 15} A PPLA, or planned permanent living arrangement, is defined as a juvenile
court order that: (1) gives a public children services agency legal custody of a child without
terminating parental rights; and (2) also lets the agency “make an appropriate placement
of the child and to enter into a written agreement with a foster care provider or with another
person or agency with whom the child is placed.” R.C. 2151.011(A)(38). See also In re
A.B., 110 Ohio St. 3d 230, 2006-Ohio-4359, 852 N.E.2d 1198, ¶ 24. Both R.C. 2151.353
and R.C. 2151.415 contain provisions that allow PPLAs to be granted in juvenile cases.
{¶ 16} R.C. 2151.353 addresses the available dispositions if a child is adjudicated
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abused, neglected, or dependent. Among the available dispositions is granting
temporary custody to the agency. See R.C. 2151.353(A)(2)(a). Another option is to
place the child in a PPLA with a public children services agency. See R.C.
2151.353(A)(5).
{¶ 17} Specifically, R.C. 2151.353(A) provides, in pertinent part, that:
If a child is adjudicated an abused, neglected, or dependent child,
the court may make any of the following orders of disposition:
***
(5) Place the child in a planned permanent living arrangement with a
public children services agency or private child placing agency, if a public
children services agency or private child placing agency requests the court
to place the child in a planned permanent living arrangement and if the court
finds, by clear and convincing evidence, that a planned permanent living
arrangement is in the best interest of the child, that the child is sixteen years
of age or older, and that one of the following exists:
***
(c) The child has been counseled on the permanent placement
options available to the child, and is unwilling to accept or unable to adapt
to a permanent placement.
{¶ 18} To decide if a child should be placed in a PPLA under R.C.
2151.353(A)(5)(c), the court “shall consider all relevant information that has been
presented to the court, including information gathered from the child, the child’s guardian
ad litem, and the public children services agency or private child placing agency.” R.C.
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2151.353(B)(1).
{¶ 19} In its initial complaint, MCCS did not ask for a PPLA. Instead, MCCS
asked for temporary custody of H.C.S. Consistent with this request, and after finding
H.C.S. dependent and neglected, the trial court granted a temporary custody order under
R.C. 2151.353(A)(2). Temporary custody orders issued under R.C. 2151.353(A)
terminate within the earlier of one year after the complaint is filed or the child is placed in
shelter care, unless a motion is filed under R.C. 2151.415. See R.C. 2151.353(G). In
that event, “the temporary custody order will continue and not terminate until the court
issues a disposition order” under R.C. 2151.415. Id.
{¶ 20} R.C. 2151.353 also allows agencies to file a motion “at any time” to ask the
trial court “to modify or terminate any order of disposition” issued under R.C. 2151.353(A),
R.C. 2151.414, or R.C. 2151.415. See R.C. 2151.353(F)(2). In such situations, the
court is to “hold a hearing upon the motion as if the hearing were the original dispositional
hearing” and “give all parties to the action and the guardian ad litem notice of the hearing
pursuant to the Juvenile Rules.” Id. We interpret this to mean that the trial court is to
afford litigants the same procedural protections and consideration as would attend an
initial hearing.
{¶ 21} An example of modification would be the motion that MCCS filed in August
2017 to change temporary custody of W.J.S. from Aunt to the agency, due to Aunt’s
difficulties. This occurred less than two months after Aunt was given temporary custody,
and was well before MCCS would have needed to ask for an extension of temporary
custody.
{¶ 22} As noted, R.C. 2151.415 also contains provisions pertaining to PPLAs.
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R.C. 2151.415 outlines various procedures for dispositional orders, and states that where
an agency has been given temporary custody under R.C. 2151.353, the agency “shall file
a motion with the court that issued the order of disposition requesting that any of the
following orders of disposition of the child be issued by the court * * *.” R.C. 2151.415(A).
{¶ 23} The specific dispositional orders in question are outlined in R.C.
2151.415(A)(1)-(6), and they are similar to the orders allowed under R.C. 2151.353(A).
As pertinent here, they include “[a]n order that the child be placed in a planned permanent
living arrangement.” R.C. 2151.415(A)(5). MCCS could have chosen to seek an
extension of temporary custody, as that is one of the options listed in the statute. See
R.C. 2151.415(A)(6). However, MCCS chose to seek a PPLA.
{¶ 24} In this situation, an agency must file a motion for the trial court to issue one
of the listed dispositional orders no later than 30 days before “the date for the termination
of the custody order * * *.” R.C. 2151.415(A). The clear implication is that R.C.
2151.415, rather than R.C. 2151.353, applies to proceedings taking place after the
original dispositional order is filed. In the case before us, the termination date for the
temporary custody order was January 26, 2018, and MCCS filed a motion seeking a PPLA
on November 30, 2017, well in advance of the deadline.
{¶ 25} After an agency’s motion is filed, the trial court must hold a dispositional
hearing and issue an order of disposition “in accordance with the best interest of the child
as supported by the evidence presented at the dispositional hearing.” R.C. 2151.415(B).
The requirements for PPLA orders are contained in R.C. 2151.415(C), and differ slightly
from the provisions for such orders in R.C. 2151.353(A)(5).
{¶ 26} R.C. 2151.415(C)(1) states, in pertinent part, that:
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If an agency pursuant to division (A) of this section requests the court
to place a child into a planned permanent living arrangement, the agency
shall present evidence to indicate why a planned permanent living
arrangement is appropriate for the child, including, but not limited to,
evidence that the agency has tried or considered all other possible
dispositions for the child. A court shall not place a child in a planned
permanent living arrangement, unless it finds, by clear and convincing
evidence, that a planned permanent living arrangement is in the best
interest of the child, that the child is sixteen years of age or older, and that
one of the following exists:
***
(c) The child has been counseled on the permanent placement
options available, is unwilling to accept or unable to adapt to a permanent
placement, and is in an agency program preparing for independent living.
{¶ 27} In her decision, the magistrate made several specific findings about
Mother’s case plan objectives, the services MCCS provided to Mother, Mother’s conduct
during the case, and Mother’s failure to complete her case plan objections. After
addressing these matters in detail, the magistrate concluded, “in sum,” that Mother “has
not addressed case plan concerns and has failed to demonstrate that she is able to care
for the children at this time or within the foreseeable future. Moreover, the credible
testimony from the caseworker and the maternal aunt * * * demonstrated to the Court that
the placement of the children with the mother would place them at serious risk of harm.”
Case No. 2017-500 Doc. #5, pp. 2-3.
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{¶ 28} In addition, the magistrate made the following findings about H.C.S:
 The Court further finds that no alternate placements have been identified
for [H.C.S.]. [H.C.S.] remains in foster case where she is doing well.
She is attending school and is on-track to graduate. She has good
grades and works part-time. She appears well-adjusted in the foster
home. [H.C.S.] has been visiting with her mother but at times she has
refused to attend. Her relationship with her mother is complicated and
inconsistent. [H.C.S.] has expressed that she wants to remain in foster
care until she can emancipate.
 The child/[H.C.S.] is older than sixteen years, has been counseled on
the permanent placement options available, is unwilling to accept or
unable to adapt to a permanent placement.
 The GAL recommends * * * Planned Permanent Living Arrangement
(PPLA) of [H.C.S.] to [MCCS].
 The placement addressed herein is in the best interest of the children.
 The case plan as previously filed is incorporated herein by reference.
Case No. 2017-500 Doc. #5 at p. 3.
{¶ 29} In granting MCCS’s motion for a PPLA, the magistrate did not state that
H.C.S. was “in an agency preparing for independent living.” R.C. 2151.415(C)(1)(c). In
contrast, R.C. 2151.353(A)(5) does not require this particular finding. Thus, if only R.C.
2151.415 applies to dispositional orders made after the first order, the magistrate erred
by failing to make the finding.
{¶ 30} As noted, R.C. 2151.415(A) clearly applies to post-adjudication situations
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where an agency has previously received temporary custody. However, some Ohio
courts have applied R.C. 2151.353 to motions for planned permanent living arrangements
made after a public children services agency has been given temporary custody of a child.
See, e.g., In re M.E.K., 12th Dist. Butler No. CA2016-12-241, 2017-Ohio-7543, ¶ 9
(applying R.C. 2151.353(A)(5) where child was dependent and agency was given
temporary custody; agency then filed for a PPLA a year and a half later); In re I.M.M., 8th
Dist. Cuyahoga No. 107451, 2019-Ohio-461, ¶ 24 (referring to both R.C.
2151.415(C)(1)(a) and 2151.353(A)(5)(a)).
{¶ 31} Other courts have cited R.C. 2151.415 as the basis for the agency’s motion.
Obviously, decisions are inconsistent. See, e.g., In re R.P., 5th Dist. Licking No. 09 CA
123, 2010-Ohio-1334, ¶ 4 and 108 (agency asked that child be placed into PPLA pursuant
to R.C. 2151.415(A)(5) and (C); appellate court then applied R.C. 2151.353(A)(5)
standards in reviewing the trial court’s decision); In re J.S., 9th Dist. Summit No. 23842,
2008-Ohio-179, ¶ 3-4 and 16-36 (PPLA motion was brought under R.C. 2151.415 one
year after agency had been given temporary custody; court evaluated PPLA decision
under R.C. 2151.415(C)(1)).
{¶ 32} We need not resolve these issues, however. Assuming that R.C.
2151.415, rather than R.C. 2151.353, is the controlling statute, the trial court’s failure to
state one element of the finding in R.C. 2151.415(C)(1)(c) was not an error that
“ ‘seriously affect[ed] the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.’ ”
A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, at ¶16, quoting Goldfuss, 79 Ohio
St.3d 116, 679 N.E.2d 1099, at syllabus.
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{¶ 33} We see no harm that this omission caused, and it does not challenge the
integrity of the judicial system. In this regard, we note that the same magistrate presided
during the entire case and also conducted an in camera interview with H.C.S. See Case
No. 2017-500 Doc. #4, Report and Recommendations of the Guardian Ad Litem, p. 3.
{¶ 34} More importantly, the State asked the court during the hearing to take
judicial notice of the prior pleadings in the case. Tr. at p. 43. This record includes a
January 12, 2018 “Case Review.” In the review, MCCS stated that H.C.S. had
“completed the Agency’s Independent Living Program through the review period.” Case
No. 2017-500 Doc. #13, MCCS Case Review for the period between October 26, 2017,
and January 12, 2018, p. 3. MCCS filed this document with the trial court on January
18, 2018. Id.
{¶ 35} There would be no value in remanding this case to the trial court to make a
finding that is already evident in the record. We also note that H.C.S. turned 18 years
old in February 2019, and is scheduled to graduate from high school in a few months, at
which time the juvenile court will lose jurisdiction over the case. See R.C.
2151.353(F)(1).
{¶ 36} As a final matter, we will briefly address the dissent. According to the
dissent, MCCS could not ask for a PPLA order because it did not request such a
disposition in the original complaint. This argument is based on a very restrictive view
that is not supported by either the statutes in question or the general principles underlying
proceedings in neglect, abuse, and dependency cases.
{¶ 37} Specifically, the dissent first relies on R.C. 2151.353(C), which states that:
No order for permanent custody or temporary custody of a child or
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the placement of a child in a planned permanent living arrangement shall
be made pursuant to this section unless the complaint alleging the abuse,
neglect, or dependency contains a prayer requesting permanent custody,
temporary custody, or the placement of the child in a planned permanent
living arrangement as desired, the summons served on the parents of the
child contains as is appropriate a full explanation that the granting of an
order for permanent custody permanently divests them of their parental
rights, a full explanation that an adjudication that the child is an abused,
neglected, or dependent child may result in an order of temporary custody
that will cause the removal of the child from their legal custody until the court
terminates the order of temporary custody or permanently divests the
parents of their parental rights, or a full explanation that the granting of an
order for a planned permanent living arrangement will result in the removal
of the child from their legal custody if any of the conditions listed in divisions
(A)(5)(a) to (c) of this section are found to exist, and the summons served
on the parents contains a full explanation of their right to be represented by
counsel and to have counsel appointed pursuant to Chapter 120. of the
Revised Code if they are indigent.
(Emphasis added.)
{¶ 38} As noted earlier, R.C. 2151.353 deals with the initial disposition of children
who are found neglected, dependent, or abused. R.C. 2151.353(C) simply requires that
the agency state which initial disposition it desires when the complaint is filed, if it is one
of the three listed dispositions. The statute is phrased in the alternative, so that an
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agency can choose which disposition may be initially appropriate. This is logical, since
agencies often act in emergency situations or may initially desire only temporary custody
in order to work with parents on reunification. This, after all, is an important part of the
statutory scheme. See, e.g., In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d
816, ¶ 21 (“the importance of requiring reasonable reunification efforts * * * pervades
federal and Ohio law”).
{¶ 39} R.C. 2151.353(C) also clearly pertains only to the initial complaint, by
requiring various explanations that must be included on the summons issued to parents,
including the effect of various adjudications and dispositions and a parent’s right to have
counsel appointed.
{¶ 40} After citing R.C. 2151.353(C), the dissent relies on R.C. 2151.353(F)(2) for
the proposition that an agency cannot ask the court to modify a prior disposition and grant
a different order unless the agency previously requested the particular relief in its original
complaint. The dissent specifically refers to PPLA orders (the context of the current
case), but a more general application is unavoidable.
{¶ 41} The dissent’s position is based on the wording in R.C. 2151.353(F)(2),
which lets agencies ask to modify or terminate orders of disposition issued under R.C.
2151.353(A). These orders include: orders of protective supervision; orders giving
temporary custody to the agency and other listed persons and entities; orders of legal
custody to specified persons; orders of permanent custody to the agency; orders for
planned permanent living arrangements; or orders removing a person who committed
abuse from the child’s home. See R.C. 2151.353(A)(1)-(6). Obviously, many of these
initial orders are temporary in nature.
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{¶ 42} R.C. 2151.353(F)(2) states that:
Any public children services agency, any private child placing
agency, the department of job and family services, or any party, other than
any parent whose parental rights with respect to the child have been
terminated pursuant to an order issued under division (A)(4) of this section,
by filing a motion with the court, may at any time request the court to modify
or terminate any order of disposition issued pursuant to division (A) of this
section or section 2151.414 or 2151.415 of the Revised Code. The court
shall hold a hearing upon the motion as if the hearing were the original
dispositional hearing and shall give all parties to the action and the guardian
ad litem notice of the hearing pursuant to the Juvenile Rules. If applicable,
the court shall comply with section 2151.42 of the Revised Code.
{¶ 43} The dissent’s position is based on the above reference to holding the
hearing as if it were the original dispositional hearing. From this, the dissent concludes
that MCCS would be precluded from filing for a PPLA under R.C. 2151.353, because it
did not ask for that particular relief in the complaint. We disagree.
{¶ 44} Accepting the dissent’s position means that agencies could not seek to
modify or terminate any order granted under R.C. 2151.353(A) if the complaint failed to
specify the particular order that is later being sought, whether that order be temporary
custody, permanent custody, or a PPLA. In other words, and as an example – if the
agency did not ask for temporary custody in the complaint, but instead only asked for
protective supervision, it could not later file a motion under R.C. 2151.353(F)(2), asking
the court to modify or terminate protective supervision and grant the agency temporary
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custody. Adopting the dissent’s view would hamstring agencies and courts and is not
consistent with the ability to modify or make new orders, which is essential in these types
of cases.
{¶ 45} Furthermore, the clear intent of requiring that the matter proceed as on an
original disposition is to ensure that parties receive the same protections and procedures
afforded with respect to an initial dispositional hearing. For example, R.C. 2151.35(B)
sets out procedures for dispositional hearings, including that:
The dispositional hearing shall be conducted in accordance with all
of the following:
(a) The judge or referee who presided at the adjudicatory hearing
shall preside, if possible, at the dispositional hearing;
(b) The court may admit any evidence that is material and relevant,
including, but not limited to, hearsay, opinion, and documentary evidence;
(c) Medical examiners and each investigator who prepared a social
history shall not be cross-examined, except upon consent of the parties, for
good cause shown, or as the court in its discretion may direct. Any party
may offer evidence supplementing, explaining, or disputing any information
contained in the social history or other reports that may be used by the court
in determining disposition.
R.C. 2151.35(B)(2).
{¶ 46} In addition, R.C. 2151.35(B)(3) provides time limits for entering judgment
and other conditions for judgment. R.C. 2151.35(F) and (G) also set out procedures for
accepting statements of children and taking their testimony by deposition. These
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procedures are designed to ensure continuity in proceedings and protect the rights of
parents, children, and agencies. This is completely consistent with the requirement in
R.C. 2151.353(F)(2) that further dispositional proceedings will proceed as if they were the
original dispositional hearing. Accordingly, we disagree with the dissent’s restrictive
interpretation of R.C. 2151.353(F)(2).
{¶ 47} Based on the preceding discussion, Mother’s sole assignment of error is
overruled.
IV. Conclusion
{¶ 48} Mother’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
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HALL, J., concurs.
FROELICH, J., dissents:
{¶ 49} The magistrate found that H.C.S. should be placed in a planned permanent
living arrangement (PPLA) with MCCS, and the trial court adopted that decision without
objection from Mother. I would conclude that the trial court committed plain error in
granting that placement in the absence of a finding that H.C.S. was in an agency program
preparing her for independent living, as required by R.C. 2151.415(C)(1).
{¶ 50} Both R.C. 2151.353 and R.C. 2151.415 contain provisions that provide for
the modification of a trial court’s disposition for an abused, dependent, or neglected child,
and that provide for the placement of a child in a PPLA. R.C. 2151.353 addresses the
available dispositions when a child is adjudicated an abused, neglected, or dependent
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child; R.C. 2151.353(A)(5) governs the placement in a PPLA. In contrast, R.C. 2151.415
requires a public children services agency with temporary custody of a child to file a timely
motion for one of several dispositions, including an order that the child be placed in a
PPLA. R.C. 2151.415(A)(5); R.C. 2151.415(C).
{¶ 51} A juvenile court must make findings prior to placing a child in a PPLA, and
those findings differ under R.C. 2151.353(A)(5) and R.C. 2151.415(C)(1). Under R.C.
2151.353(A)(5), a juvenile court may place a child in a PPLA with a public children
services agency if it finds, among other things, that “the child has been counseled on the
permanent placement options available to the child, and is unwilling to accept or unable
to adapt to a permanent placement.” R.C. 2151.353(A)(5). Under R.C. 2151.415(C)(1),
the trial court must make those findings, plus an additional finding that the child “is in an
agency program preparing for independent living.” (Emphasis added.)
{¶ 52} As noted in the majority opinion, Ohio courts have applied R.C. 2151.353
to motions for PPLA made after a public children services agency had temporary custody
of a child. See, e.g., In re A.B., 110 Ohio St. 3d 230, 2006-Ohio-4359, 852 N.E.2d 1187;
In re Priser, 2d Dist. Montgomery No. 19861, 2004-Ohio-1315.
{¶ 53} Nevertheless, regardless of whether both R.C. 2151.353 and R.C.
2151.415 generally can apply to motions for a PPLA after an initial disposition, I would
find that R.C. 2151.353 is not applicable in this case. R.C. 2151.353(C) states:
No order for permanent custody or temporary custody of a child or the
placement of a child in a planned permanent living arrangement shall be
made pursuant to this section [i.e., R.C. 2151.353] unless the complaint
alleging the abuse, neglect, or dependency contains a prayer requesting
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permanent custody, temporary custody, or the placement of the child in a
planned permanent living arrangement as desired, the summons served on
the parents of the child contains * * * a full explanation that the granting of
an order for a planned permanent living arrangement will result in the
removal of the child from their legal custody if any of the conditions listed in
divisions (A)(5)(a) to (c) of this section are found to exist, and the summons
served on the parents contains a full explanation of their right to be
represented by counsel and to have counsel appointed pursuant to Chapter
120. of the Revised Code if they are indigent.
(Emphasis added.) See also R.C. 2151.27(C) (“If the complainant in a case in which a
child is alleged to be an abused, neglected, or dependent child desires * * * the placement
of the child in a planned permanent living arrangement, the complaint shall contain a
prayer specifically requesting * * * the placement of the child in a planned permanent
living arrangement.”).
{¶ 54} MCCS’s neglect and dependency complaint for H.C.S. requested “a
preferred disposition of Temporary Custody to MCCS.” MCCS did not request PPLA in
its complaint, and it received temporary custody of H.C.S. R.C. 2151.353(F)(2) allows
the agency to file a motion to modify or terminate any order of disposition previously
issued pursuant to R.C. 2151.353(A), and the court must hold a hearing “as if the hearing
were the original disposition hearing.” R.C. 2151.353(F)(2). However, I read nothing in
R.C. 2151.353(F)(2) that permits the juvenile court to grant a disposition pursuant to a
motion under R.C. 2151.353(F)(2) that could not have been granted at the original
disposition hearing. In light of R.C. 2151.353(C), the juvenile court could not grant a
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PPLA under R.C. 2151.353(A)(5) with the complaint in this case. Accordingly, the
juvenile court likewise could not grant a PPLA pursuant to a motion filed under R.C.
2151.353(F)(2) after the original disposition of temporary custody of H.C.S. to MCCS.
Under these circumstances, R.C. 2151.415 provided the appropriate statutory
authorization for MCCS’s motion for PPLA.
{¶ 55} The magistrate found that a PPLA was in H.C.S.’s best interest and that she
was at least 16 years old. The magistrate further found that H.C.S. had been counseled
on the permanent placement options available, and was unwilling to accept or unable to
adapt to a permanent placement. However, the magistrate did not make any finding that
H.C.S. was in an agency program preparing for independent living. In the absence of
such a finding, the magistrate did not make all of the required statutory findings for PPLA
under R.C. 2151.415. In my view, the grant of MCCS’s motion for a PPLA without
making all of the required statutory findings constitutes plain error. See R.C.
2151.415(C)(1) (stating that a court “shall not place a child in a planned permanent living
arrangement” unless it makes specific statutory findings by clear and convincing
evidence). Accordingly, I dissent.
Copies sent to:
Mathias H. Heck
Sarah E. Hutnik
Benjamin W. Ellis
Gary C. Schaengold
Catherine McCarthy, GAL
J.S. (Father)
P.S. (Maternal Aunt)
Hon. Anthony Capizzi