In re M.H. , 2014 Ohio 1050 ( 2014 )

[Cite as In re M.H., 2014-Ohio-1050.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.H. and L.S. : APPEAL NOS. C-130703
C-130704
: TRIAL NO. F06-1277z
: O P I N I O N.
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Appeals Dismissed
Date of Judgment Entry on Appeal: March 21, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest Lee, Assistant
Prosecuting Attorney, for Appellant Hamilton County Department of Job and Family
Services,
Nathan Bell, for Appellant Guardian Ad Litem,
Elizabeth Mitts, for Appellee Father.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Appellants Hamilton County Department of Job and Family Services
(“HCJFS”) and the guardian ad litem (“GAL”) for L.S. appeal an order of the juvenile
court with respect to two children, M.H. and L.S. In the order, the juvenile court had
rejected the decision of the magistrate, which had dismissed a complaint for dependency
with respect to L.S., and had remanded the matter to the magistrate “for further
disposition regarding [L.S.].” The juvenile court had also rejected the magistrate’s
decision, which had adjudicated M.H. dependent, denied Leslie Scarborough’s petition
for legal custody of M.H., and had granted temporary custody of M.H. to HCJFS. The
juvenile court stated that it was “retaining jurisdiction to make appropriate dispositions
regarding the placement of the child for her safety and award[ing] the petition of legal
custody of [M.H. to Leslie Scarborough].”
{¶2} On appeal, HCJFS argues that it should have been awarded
permanent custody of both children. In her separate appeal, the GAL objects only to the
juvenile court’s treatment of L.S. Appellee, the father of L.S., argues that the juvenile
court’s order is not a final appealable order.
{¶3} Prior to this court’s exercise of jurisdiction over an appeal, an order of
a lower court must be a final, appealable order, and meet the requirements under R.C.
2505.02(B), and if applicable, Civ.R. 54(B). In re Adams, 115 Ohio St.3d 86, 2007-
Ohio-4840, 873 N.E.2d 886, ¶ 27. Both HCJFS and the GAL argue that the trial court’s
order in this case is final because it meets the requirements under R.C. 2505.02(B)(2).
R.C. 2505.02(B)(2) provides that “[a]n order is a final order that may be reviewed,
affirmed, modified, or reversed when it is * * * [a]n order that affects a substantial right
made in a special proceeding or upon a summary application in an action after
judgment.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The Ohio Supreme Court has held that custody hearings in juvenile
court are special proceedings. Adams at ¶ 43; In re C.B., 129 Ohio St.3d 231, 2011-Ohio-
2899, 951 N.E.2d 398, ¶ 12. Thus, we must determine if the trial court’s order with
respect to L.S. and M.H. affects a substantial right. See R.C. 2505.02. A substantial
right is a “right that the United States Constitution, the Ohio Constitution, a statute,
the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.01(A)(1). “An order that affects a substantial right is generally one that ‘if not
immediately appealable, would foreclose appropriate relief in the future.’ ” In re L.A.,
Q.T., J.T., A.T., T.T., 1st Dist. Hamilton Nos. C-130701 and C-130702, 2014-Ohio-
894, ¶ 4, citing Adams at ¶ 44, quoting Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60,
63, 616 N.E.2d 181 (1993).
{¶5} The Ohio Supreme Court has held that “[a] trial court’s 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. 2505.02(B)(1) or (2).” Adams at syllabus. The issue in Adams was
whether a children-services agency could appeal the denial of its permanent-custody
motion. Id. at ¶ 4. In analyzing the issue under R.C. 2505.02(B)(1) and (2), the
Supreme Court reasoned that the denial of permanent custody and continuation of
temporary custody did not affect the agency’s “substantial rights” in the permanent
custody of the children because the agency still had temporary custody of the
children and was not foreclosed from seeking permanent custody or a different
dispositional order under R.C. 2151.415(A) at a later date. Id. at ¶ 37 and 42-44.
{¶6} In In re C.B., the Supreme Court held that a juvenile court’s order
that “denies a children-services agency’s motion to modify temporary custody to
permanent custody, terminates the placement of temporary custody with the agency,
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OHIO FIRST DISTRICT COURT OF APPEALS
and awards legal custody to a parent, * * * is [a] final and appealable [order] under
R.C. 2505.02.” C.B. at syllabus. The Supreme Court held that the juvenile court’s
order had determined the action and prevented any further judgment under R.C.
2505.02(B)(1) because the disposition of legal custody was permanent and had
ended the existing proceeding under R.C. 2151.42. Id. at ¶ 12. In determining
whether the order had affected a “substantial right” under R.C. 2505.02(B)(1) and
(2), the Supreme Court focused upon the unique statutory role of a GAL in
permanent-custody proceedings to ensure that the best interests of the child were
considered before custody modifications were made. Id. at ¶ 14. The court concluded
that the GAL could appeal an order terminating temporary custody with a children-
services agency and awarding legal custody to a parent because the order had
affected a “substantial right” of the GAL to ensure that the best interests of the child
had been considered. Id.
{¶7} Here, the trial court’s order with respect to L.S. is similar to the order
in Adams. The trial court rejected the magistrate’s decision, which had dismissed
HCJFS’s complaint for dependency with respect to L.S., and had remanded the matter
to the magistrate “for further disposition regarding [L.S.].” Thus, the order does not
foreclose the possibility of permanent custody to HCJFS. Nor does the order terminate
interim custody to HCJFS. Furthermore, no legal custody determinations have been
made with respect to L.S. Because the order does not “affect a substantial right,” we,
therefore, have no jurisdiction to entertain an appeal of the trial court’s order with
respect to L.S.
{¶8} We, likewise, conclude that the part of the trial court’s order
pertaining to M.H. does not qualify as a final appealable order. While the trial court
purported to award legal custody of M.H. to Leslie Scarborough, the trial court also
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OHIO FIRST DISTRICT COURT OF APPEALS
stated that it was “retain[ing] jurisdiction to make appropriate dispositions regarding
the placement of the child for her safety.” The trial court’s statement that it was
“retaining jurisdiction to make appropriate dispositions regarding the placement” of
M.H. is inconsistent with an award of legal custody to Ms. Scarborough. Effectively,
the trial court has not adjudicated the matter, which is still open to other motions
regarding the custody of M.H. Therefore, HCJFS retains temporary custody of M.H.,
and thus we determine the trial court’s order to be distinguishable from the order in
In re C.B.
{¶9} Because no substantial rights have been affected with respect to the
trial court’s order relating to L.S. and M.H, we lack jurisdiction to entertain the
GAL’s and HCJFS’s appeals, and therefore, dismiss them.
Appeals dismissed.
HENDON, P.J, and DEWINE, J., concur.
Please note:
The court has recorded its own entry this date.
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