In re J.A. ( 2014 )

[Cite as In re J.A., 2014-Ohio-3423.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100913
In RE: J.A.
A Minor Child
[Appeal by the Cuyahoga County Department
of Children and Family Services]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-13107373
BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 7, 2014
-i-
ATTORNEYS FOR APPELLANT, C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Laura M. Brewster
Assistant Prosecuting Attorney
4261 Fulton Parkway
Brooklyn, Ohio 44144
ATTORNEYS FOR APPELLEE
For J.A.
Brant N. Dichiera
Assistant Cuyahoga County Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106
Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113
J.A., Father of J.A., pro se
775 East 152 Street
Room S15
Cleveland, Ohio 44110
H.K., Mother of J.A., pro se
14037 Granger Road
Maple Heights, Ohio 44137
Brenda Gray
Guardian Ad Litem
13940 Cedar Road
Suite 307
Cleveland Heights, Ohio 44118
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Cuyahoga County Department of Children and Family
Services (“CCDCFS”) appeals the juvenile court’s decision committing J.A. to the
temporary custody of the agency. CCDCFS assigns the following error for our
review:
I. The trial court’s order committing J.A. to the temporary custody of
CCDCFS is a final appealable order.
II. The trial court’s order committing J.A. to the temporary custody of
CCDCFS is against the manifest weight of the evidence and is not in
the best interest of the child.
{¶2} Having reviewed the record and pertinent law, we affirm the juvenile
court’s decision. The apposite facts follow.
{¶3} On May 23, 2013, the state of Ohio filed a complaint in juvenile court
alleging that J.A. (D.O.B. 09/09/1996) raped his nine-year-old sister while the
family was living in a homeless shelter. On May 24, 2013, J.A. pleaded not guilty
at his arraignment, and the juvenile court remanded him to the Cuyahoga County
Juvenile Detention Center (“DH”) pending further proceedings.
{¶4} On June 27, 2013, the juvenile court committed J.A. to the emergency
temporary custody of CCDCFS, but continued his placement in the DH. On July
18, 2013, CCDCFS filed a motion to stay execution of the order of emergency
temporary custody to the agency, pending the outcome of the delinquency
allegations.
{¶5} At the adjudication hearing on August 20, 2013, J.A. admitted to an
amended charge of gross sexual imposition, a felony of the third degree if
committed by an adult. On that same date, the juvenile court denied CCDCFS’s
motion to stay the emergency temporary custody order and underscored its previous
order committing J.A. to the agency. Again, the juvenile court remanded J.A. to the
DH.
{¶6} At a dispositional hearing on September 13, 2013, J.A.’s attorney
orally motioned the court for an order committing J.A. to the temporary custody of
CCDCFS on the grounds that J.A. was a dependent child. On September 26, 2013,
the juvenile court journalized an entry indicating that it was holding the motion in
abeyance and continued the matter for a full hearing. The juvenile court then
released J.A. from the DH to his CCDCFS case worker for placement through the
agency.
{¶7} At a second dispositional hearing on October 24, 2013, Danielle
Yencha, investigative probation officer, presented a dispositional report and
recommendation. Yencha indicated that CCDCFS has been involved with the
family for the preceding ten years, generally for father’s abusive behavior, as well
as J.A.’s destructive and abusive behavior. Yencha indicated that J.A. was abusive
and physically aggressive towards his siblings and abusive to his mother.
{¶8} Yencha also indicated that J.A. has been diagnosed with ADHD, mood
disorder, schizoaffective disorder, bipolar features, depressive disorder, pervasive
developmental disorder, and disruptive behavior. Medical professionals have
prescribed a variety of medication including Concerta, Ritalin, Seroquel, Clonidine,
Trazodone, Zyprexa, and Risperdal to address J.A.’s condition. Yencha indicated
J.A.’s psychiatrist had recently took J.A. off the medication due to a lack of
response.
{¶9} In addition, Yencha indicated that because J.A. sexually molested his
sister, his mother did not feel safe for him to return home. Yencha discussed the
Mokita Assessment that had been ordered. Yencha stated that the assessment
revealed that J.A. lacked the proper knowledge of legal and illegal sexual behavior,
and thus posed a risk to the community. The assessment concluded that J.A. was
hardwired and had very little opportunity for true behavior change.
{¶10} Yencha indicated that J.A. was residing at Cleveland Christian Home,
was involved in sexual counseling, and was slowly making progress. Yencha
recommended that J.A. remain in the Cleveland Christian Home’s residential
treatment program.
{¶11} Laura Brewster appeared on behalf of CCDCFS and voiced opposition
to the motion for an order of temporary custody of J.A. to the agency. Brewster
argued that J.A. posed a risk to the community including his sister because of his
behavior and psychological issues. Brewster maintained that J.A. should be placed
through the juvenile court and not the agency.
{¶12} At the final dispositional hearing on December 12, 2013, Yencha
reiterated the report from the previous dispositional hearing. Anthony Cook,
probation manager, reported that J.A.’s mother was still unwilling to have her son
return home and argued that mother’s unwillingness renders J.A. a dependent child.
Cook recommended that CCDCFS retain custody of J.A., so that they could
provide transitional services upon completion of treatment. Brewster re-voiced the
agency’s opposition to the order of temporary custody.
{¶13} The juvenile court classified J.A. as a Tier II sexual offender,
committed him to the legal custody of the Ohio Department of Youth Services
(“ODYS”) for six months, but suspended the commitment and placed him on one
year of community control. The juvenile court also committed J.A. to the
temporary custody of CCDCFS, but ordered him to continue at the Cleveland
Christian Home’s residential treatment facility. CCDCFS now appeals.
Final Appealable Order
{¶14} We begin by setting forth why the order granting temporary custody is
final and appealable under R.C. 2505.02. Immediately after CCDCFS appealed
the juvenile court’s decision committing J.A. to the custody of its agency, J.A. filed
a motion to dismiss on the grounds that the decision was not final and appealable.
For the reasons that follow, we decline to dismiss the appeal.
{¶15} Appellate courts “have such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” Ohio Constitution,
Article IV, Section 3(B)(2). If a court’s order is not final and appealable, we lack
jurisdiction to review the matter and we must dismiss the appeal. In re S.M.B., 8th
Dist. Cuyahoga No. 99035, 2013-Ohio-1801, ¶ 4.
{¶16} R.C. 2505.02(B)(2) provides that an order is final and appealable if it
“affects a substantial right made in a special proceeding or upon a summary
application in an action after judgment.” “Substantial right” includes “a right that *
* * a statute * * * entitles a person to enforce or protect.” R.C. 2505.02(A)(1). A
“special proceeding” is “an action or proceeding that is specially created by statute
and that prior to 1853 was not denoted as an action at law or a suit in equity.” R.C.
2505.02(A)(2).
{¶17} Juvenile court proceedings are special proceedings. State ex rel.
Fowler v. Smith, 68 Ohio St. 3d 357, 360, 1994-Ohio-302, 626 N.E.2d 950. See
also In re C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 12
(“[C]ustody hearings are special proceedings”). It follows, then, that if the
temporary custody order affects a “substantial right,” the order is final and
appealable.
{¶18} In the instant case, once the court ordered CCDCFS to assume
temporary custody, CCDCFS assumed statutory obligations to act in J.A.’s best
interest. See R.C. 5153.16(A)(7). Recently, in In re C.L.M., 8th Dist. Cuyahoga
No. 99622, 2013-Ohio-4044, we stated:
CCDCFS is required to (“[a]ccept custody of children committed to
the public children services agency by a court exercising juvenile
jurisdiction.”); R.C. 5153.16(A)(4) (mandating that CCDCFS provide
a level of care that the agency considers to be in the best interest of the
child). The emergency custody order required CCDCFS to take on the
parental role of providing for C.L.M.’s basic needs (food, clothing,
shelter), his educational needs, and his medical and psychological
needs. In short, the order imposed custody on CCDCFS where no
custody previously existed, and required CCDCFS to fulfill a
multitude of statutory obligations, which included finding an
appropriate placement for a tier II sex offender, who expresses
homicidal ideations.
Id. at ¶ 17.
{¶19} Here, for the same reasons stated in In re C.L.M., we conclude that a
substantial right is affected in this case. Because the temporary custody order
affects a substantial right made in a special proceeding, the order is final and
appealable under R.C. 2505.02(B)(2). Consequently, we have jurisdiction to
review the appeal. Accordingly, we overrule the first assigned error.
Temporary Custody
{¶20} In the second assigned error, CCDCFS argues the juvenile court’s
decision granting the agency temporary custody of J.A. is against the manifest
weight of the evidence and not in J.A.’s best interest.
{¶21} When reviewing custody issues, a juvenile court’s decision is granted
great deference and will not be disturbed absent an abuse of discretion. Smith v.
Smith, 12th Dist. Butler No. CA2005-04-091, 2006-Ohio-2136. More than mere
error of judgment, an abuse of discretion requires that the court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 450 N.E.2d 1140 (1983).
{¶22} Further, the discretion which a trial court enjoys in custody matters
should be accorded the utmost respect, given the nature of the proceeding and the
impact the court’s determination will have on the lives of the parties concerned. In
re L.C., 8th Dist. Cuyahoga No. 93657, 2010-Ohio-778, ¶ 16, citing In re
Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-Ohio-4137.
{¶23} In the instant case, CCDCFS does not dispute that the juvenile court
has the authority to issue an order granting temporary custody to the agency after
adjudicating a child delinquent. Nor does CCDCFS dispute the juvenile court’s
authority under R.C. 2151.353 to issue orders for the care and protection of an
abused, neglected, or dependent child. Instead, CCDCFS argues that J.A. is not
abused or neglected, thus the juvenile court’s order does not advance the purposes
of R.C. 2152.01(A), which include the following:
* * * [T]o provide for the care, protection, and mental and physical
development of children subject to this chapter, protect the public
interest and safety, hold the offender accountable for the offender’s
actions, restore the victim and rehabilitate the offender.
{¶24} However, despite CCDCFS’s protestations, the record establishes that
J.A. is a dependent child and thus, the trial court had authority under R.C. 2151.353
to issue the instant order of temporary custody to the agency. Throughout the
proceedings below, the record reveals that J.A.’s mother would not allow him to
return home because of the underlying sexual assault of his sister. The record also
reveals that J.A.’s mother had difficulty maintaining stable housing and was
actually living in a homeless shelter at the time of the offense.
{¶25} In addition, the record also revealed that J.A. suffered from a host of
psychological problems and had been diagnosed with ADHD, mood disorder,
Schizoaffective Disorder, Bipolar Features, Depressive Disorder, Pervasive
Developmental Disorder and Disruptive Behavior. Further, the record reveals that
J.A. was in a residential treatment facility geared to addressing his psychological
and behavioral challenges. Finally, the record reveals that J.A. would be 18 years
old by the time the ordered community control would end. Therefore, the order of
temporary custody to the agency would be important for the transitional services
that J.A. would need upon the completion of treatment and the end of the
community control sanctions.
{¶26} Based on the foregoing, we conclude the juvenile court did not abuse
its discretion in committing J.A. to the custody of CCDCFS. Accordingly, we
overrule the second assigned error.
{¶27} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The trial court’s adjudication of delinquency having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of commitment.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., (CONCURS
WITH ATTACHED OPINION)
SEAN C. GALLAGHER, P.J., CONCURRING:
{¶28} I concur with the judgment and analysis of the majority on both
assigned errors, but write separately to address concerns raised by this case.
{¶29} First, I am perplexed to see we are required to analyze whether we
have a final appealable order ostensibly because it is CCDCFS, or more properly
the state of Ohio, initiating this appeal. Although the majority opinion with its
reliance on the case of In re C.L.M., 8th Dist. Cuyahoga No. 99622,
2013-Ohio-4044, is on point, it would seem the legislature should examine whether
R.C. 5153.16 or R.C. 2945.67 should afford prosecutors an express right to appeal
in cases where temporary custody is intertwined with an adjudication of
delinquency.
{¶30} Because I can find no provision in R.C. 2152.19 that limits a judge’s
discretion to award or grant temporary custody to CCDCFS after adjudicating a
child delinquent, I must concur in the resolution of the second assigned error.
Nevertheless, this is a slippery slope that can lead judges to duplicating services and
consuming limited resources, albeit with a noble intent, but with a costly result.
At some point, the legislature may wish to look more closely at the dividing line
between delinquency and dependency. Although they may arguably be
interrelated at times, resources are not limitless.