In re N.A. , 2024 Ohio 2961 ( 2024 )

[Cite as In re N.A., 2024-Ohio-2961.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
IN RE: CASE NO. 7-23-16
N.A.
[HENRY COUNTY JOB AND OPINION
FAMILY SERVICES - APPELLANT]
Appeal from Henry County Common Pleas Court
Juvenile Division
Trial Court No. 20213005
Judgment Reversed and Cause Remanded
Date of Decision: August 5, 2024
APPEARANCES:
Melody Wilhelm for Appellant
Judith A. Myers for Appellee
Laurel A. Kendall, Guardian Ad Litem
Case No. 7-23-16
WALDICK, J.
{¶1} Plaintiff-appellant, Henry County Department of Job and Family
Services (“JFS”), brings this appeal from the September 22, 2023, judgment of the
Henry County Common Pleas Court, Juvenile Division, dismissing JFS’s motion
for permanent custody. For the reasons that follow, we reverse.
Background
{¶2} N.A. was born in November of 2007. His mother is Regina R. and his
father is Samuel S. N.A. has a younger half-brother, K. Both children share the same
mother, but not the same father. N.A.’s father was not involved in this case.
{¶3} N.A. has numerous mental health diagnoses: he is autistic, he is
developmentally disabled, he has ODD, and he has ADHD.1 Moreover, while N.A.
was living with Regina, K., Regina’s parents, and Regina’s brother, N.A. and K.
were sexually abused by Regina’s brother. The incident ultimately led to charges
against Regina’s brother, and Regina’s brother was convicted of Gross Sexual
Imposition against N.A. and K.
{¶4} On March 24, 2021, JFS filed a complaint that alleged N.A. was a
neglected child. It was alleged that Regina was allowing both boys to be exposed to
her brother/the children’s’ abuser. This was a violation of Ramiro’s “parole” and
resulted in his incarceration for the violation.
1
N.A.’s brother, K., does not have the same mental health issues.
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{¶5} In addition, with regard to N.A., it was alleged that N.A. had attendance
issues at school, and that when he was at school he wore the same dirty clothes every
day. Further, it was alleged that N.A. was displaying overly sexualized behaviors
such as exposing himself to students and staff at school. N.A. had also apparently
made a threat on the school bus to take a gun to school and shoot the teachers.
{¶6} The complaint was subsequently amended, alleging that N.A. was a
dependent child as defined in R.C. 2151.04(A). Regina ultimately admitted that
N.A. was a dependent child and JFS was granted temporary custody of N.A.
{¶7} When N.A. was originally removed from Regina’s care, N.A. was
unable to wipe himself after going to the bathroom and he was unable to shower
independently despite being 13 years old. He would also soil himself, and he would
smear feces on the walls. He needed assistance brushing his teeth. He engaged in
self-harm. He “barely could communicate different things that [were] going on[.]”
(Tr. at 154). He had significant dental issues. After being placed in a group home,
N.A. made tremendous progress such that most of these things were no longer
issues. He also was able to clean his own room and do his own laundry.
{¶8} As the case progressed, the record reflects that Regina was inconsistent
in engaging with the case plan. She secured independent housing but her
employment was unstable. One witness testified that Regina had “over 30 jobs since
the duration [sic] of this case.” (Tr. at 651). The record reflects that Regina failed to
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complete parenting classes, she failed to regularly engage in mental health
counselling, and she failed to engage in family coaching.
{¶9} Notably, Regina did undergo a psychological evaluation. The
evaluation showed that Regina had a “Borderline” full scale IQ of 70, placing her
in the 2nd percentile. She scored “extremely low” in verbal comprehension,
perceptual reasoning, and general ability. Based on the evaluation, the clinical
psychologist recommended that Regina “should not have primary caretaking
responsibilities for her son, [N.A.].” The psychologist did not have the same opinion
with regard to Regina’s son K., because K. did not have the same special needs.
{¶10} During the pendency of this case, Regina engaged in supervised
visitation with N.A., which eventually progressed to partly supervised and partly
unsupervised but in public. During one of the supervised visits, Regina and N.A.
went to a restaurant. While in line for food, N.A. kissed Regina on the lips for 5-6
seconds. The supervisor testified: “I believe it was open mouth, but it was definitely,
his hands were clasped around her neck, he pulled her in and kissed her on the
mouth.” (Tr. at 449). Regina did not redirect the behavior, so the supervisor did.
Later during the meal, N.A. showed significant regression in his behavior.
{¶11} Around this time, N.A. also made several disclosures to his therapist
claiming that he had been sexually abused by Regina and by Regina’s parents. 2 He
2
During a “play therapy” session N.A. had with his therapist, N.A. had a toy figure representing himself and
one representing his mother “and he actually used the toys to hump up and down with his mom.”
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also claimed that he had engaged in sexual conduct with his brother, K. Further,
N.A. claimed that he had observed Regina engaging in sexual conduct, and that he
had frequently watched pornography while he was in Regina’s home.3 The record
reflects that the sexual assault allegations against Regina were investigated and
found to be “unsubstantiated.” The other allegations were under investigation and
no conclusion was reached before this case was closed; however, Regina did admit
that pornography was viewed in the home.
{¶12} Over Christmas of 2022, Regina was allowed to have visitation with
N.A. at her home. Despite the fact that she was specifically ordered not to have any
other adults present, Regina allowed her parents to be at the residence. She told N.A.
to keep it a secret.
{¶13} On December 29, 2022, JFS filed a motion for permanent custody of
N.A. On June 15, 2023, N.A.’s maternal grandparents filed a motion to intervene,
seeking legal custody of the child. The trial court then granted this motion to
intervene. On June 22, 2023, the trial court scheduled a permanent custody hearing
to occur on July 6, July 7, July 31, and August 4, 2023.
{¶14} On June 29, 2023, the grandparents moved for a continuance. In a
motion opposing the requested continuance, JFS pointed out that R.C.
2151.414(A)(2) requires a permanent custody hearing is to be held 120 days after
3
N.A. reported that he had kissed his mother with his tongue inside of her mouth, that he had squeezed his
mother’s breast, buttocks and vaginal area.
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the motion is filed and that 184 days had already elapsed. JFS then argued that
granting a continuance would push a final decision “well past the statutory 200-day
requirement” in R.C. 2151.414(A)(2). The trial court denied the requested
continuance.
{¶15} Hearings on the motion for permanent custody were held in the trial
court on July 6, July 7, July 31, and August 4, 2023. However, four days were not
sufficient to conclude the permanent custody hearing. For this reason, the trial court
continued the permanent custody hearing until September 5-7, 2023. Further, at the
conclusion of the August 4 hearing, the parties had also indicated a willingness to
discuss various alternative courses of action for N.A.’s long-term care. However,
on August 22, 2023, the parties indicated that these discussions had not yielded any
agreement and that further motions from the parties would be forthcoming.
{¶16} On September 5, 2023, the trial court reconvened for the fifth day of
the final hearing. However, despite having the parties present and having the days
scheduled for the hearing, the trial court indicated at that time that it was going to
dismiss JFS’s permanent custody motion. In making its decision, the trial court
stated:
The 200 day period ended on July 16, 2023, at which time not only
was the matter to be finished in Court, the hearings on it, but also a
decision rendered by that date. We are currently 51 days overdue as
of today and we have this set for trial today, tomorrow and Thursday
after which time then I will need to file an entry on this or decision on
this. Due to my docket and my vacation coming up at the end of
September I currently have seven full legal pads of notes from this
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and we have three more days of trial, which I’m sure I’ll be adding to
more legal pads, it would be most likely I would not get a decision
done until the end of October which would render us more than 100
days overdue based on this matter. So, I’ve been discussing this with
some other colleagues, judge’s [sic] that I have contacts with and have
discussed it with them in regard to this matter because it’s bothered
me so greatly that we are, indeed overdue in this matter that I’ve
decided to dismiss this action based on the statute of time. I invite the
agency to refile and request whatever relief they desire. I am not
disputing the relief they want. I am just disputing the time matters in
this and invite them to do whatever relief, request whatever relief they
desire.
(September 5, 2023, Tr. at 3-4).4
{¶17} On September 22, 2023, the trial court filed a written judgment entry
dismissing this case, having concluded that it was “grossly overdue” according to
the statutory guidelines in R.C. 2151.414(A)(2). JFS now brings the instant appeal,
asserting the following assignment of error for our review.
Assignment of Error
The trial court abused its discretion when making an arbitrary &
unreasonable decision to dismiss based on statutory time
requirements.
Legal Standard
{¶18} R.C. 2151.414(A)(2) provides a timeline for trial courts to follow once
an agency has filed a motion for permanent custody. Under this provision, a hearing
on the motion is not to be held “later than one hundred twenty days after the agency
4
JFS opposed dismissal but indicated that it may be an option if the other parties agreed to stipulate to the
roughly 1,000 pages of testimony that had already occurred. JFS states in its brief that the parties were
unwilling to stipulate, so JFS filed this appeal.
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files the motion * * *.” R.C. 2151.414(A)(2). Further, a trial court is to “issue an
order that grants, denies, or otherwise disposes of the motion for permanent custody,
and journalize the order, not later than two hundred days after the agency files the
motion.” Id. These time requirements are followed by this proviso:
[t]he failure of the court to comply with the time periods set forth in
division (A)(2) of this section does not affect the authority of the court
to issue any order under this chapter and does not provide any basis
for attacking the jurisdiction of the court or the validity of any order
of the court.
Id. Since the time limits set forth in R.C. 2151.414(A)(2) are not jurisdictional, a
trial court retains the authority to issue an order after these specified periods have
expired. In re B.F., 2020-Ohio-3086, ¶ 6 (3d Dist.).
{¶19} Nonetheless, “[a] trial court has broad discretion in proceedings
involving the care and custody of children.” In re Mullen, 2011-Ohio-3361, ¶ 14.
Thus, on review, an appellate court determines if the trial court abused its discretion
in deciding whether to dismiss the case. In re Meyer, 98 Ohio App.3d 189, 193 (3d
Dist. 1994); In re T.W., 2012-Ohio-2843, ¶ 19 (3d Dist.); In re Rachel K., 2004-
Ohio-5239, ¶ 23 (6th Dist.). More than an error of judgment, an abuse of discretion
exists where a trial court renders a decision that is unreasonable, arbitrary, or
unconscionable. In re B.G., 2021-Ohio-4250, ¶ 30 (3d Dist.). “When applying the
abuse of discretion standard, a reviewing court may not simply substitute its
judgment for that of the trial court.” Erwin v. Erwin, 2009-Ohio-407, ¶ 27 (3d Dist.).
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Analysis
{¶20} Due to the trial court’s dismissal of JFS’s permanent custody motion,
N.A.’s development, safety, and well-being have been placed in jeopardy. When
N.A. was removed from Regina’s care, by all accounts he was very delayed, far
beyond what he should have been given his cognitive limitations. For over two years
after his removal from Regina’s care, N.A. progressed significantly in his group
home. While N.A.’s progress was not always a straight line upward, he did show
significant improvement.
{¶21} By contrast, Regina was largely non-compliant with her case plan.
Moreover, she showed terrible judgment in this case by not redirecting N.A.’s
prolonged kiss on her mouth, and she violated a court order not to have any adults
present over the Christmas holiday. She was also arrested for a theft charge that she
allegedly committed while her son K. was with her and that charge was still pending
at the time of the final hearing. Regina had multiple prior convictions for various
crimes, including one prior felony.
{¶22} We recognize that according to the guidelines—and they are merely
guidelines—that the trial court was past due for a decision even at the time the
parties reconvened for the fifth day of the final hearing. However, the very fact that
this case necessitated as many as seven days for a final hearing shows why the
“guidelines” in R.C. 2151.414(A)(2) are not mandatory because there will be
outliers. Here, this case was zealously litigated by all of the parties involved. The
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four days of the final hearing that occurred were replete with objections and
discussions regarding admissible evidence.
{¶23} Yet on September 5, 2023, despite having all of the parties together
for the fifth day of the final hearing, the trial court decided to dismiss the case
because it was beyond the suggested statutory guidelines. Had the trial court
finished the hearings only two days later as scheduled, it then could have issued a
written judgment on the matter—in theory, even before it filed its final judgment
entry dismissing the case on September 22, 2023.
{¶24} The trial court’s dismissal of the case resulted in N.A. being sent back
to his mother’s care full-time for the first time in over two years. Aside from one
Christmas visit, which had its own issues as stated previously, Regina was, at most,
visiting in person with N.A. two hours per week. In fact, at the time N.A. was sent
back to his mother’s care, she had not even had any unsupervised visitation in over
nine months.5 N.A.’s GAL, N.A.’s therapist, and the clinical psychologist all
indicated it would not be in N.A.’s best interests to be returned to Regina’s care.
{¶25} Moreover, the trial court’s decision to dismiss the case meant N.A.
was being sent back to a situation where he had been knowingly exposed to his
sexual abuser and to a situation where there were still pending allegations of sexual
abuse against other members of N.A.’s family. Further, N.A. was being sent back to
5
One of the caseworkers noted that Regina never asked for additional parenting time.
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Regina’s care even though a psychologist indicated that she was not able to
adequately care for N.A. as the sole caregiver due to N.A.’s special needs and
Regina’s own lack of understanding. N.A.’s therapist specifically testified: “My
concerns are if [N.A.] goes back [in Regina’s home] he will be sexually abused
again. My concerns are that if [N.A.] goes back that every bit of progress that he
has made and the independence will be reverted back and regression will occur.”
N.A.’s therapist testified that there was a “direct correlation” between N.A. visiting
Regina and a regression and his behavior. (Tr. at 130).
{¶26} There was also significant testimony indicating that N.A. did not deal
well with changes, particularly big changes. A sudden removal from the place he
had been progressing for two years and returning him to Regina’s environment
would seem to readily fall into that category. Testimony also noted that N.A. needs
consistency, and Regina had not shown that in her life or through her case plan.
Revised Code 2151.01(A) indicates that Chapter 2151 of the Revised Code is to be
“liberally interpreted” to provide for the care, protection, and development of
children, and the trial court’s determination to dismiss the matter so close to its
conclusion does not protect N.A.’s development.
{¶27} We are aware that contrary evidence could have been introduced in
the last three days of the hearing that would change the evidentiary landscape to
some degree. However, we are confined to the record before us. While we generally
recognize a trial court’s right to control its own docket, and we acknowledge the
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statutory timing “guidelines” under R.C. 2151.414(A)(2), the decision here is,
simply, unconscionable.
{¶28} The flexibility of the timing guidelines under R.C. 2151.414(A)(2) is
exemplified by cases such as In re M.G., 2016-Ohio-5256, ¶ 38 (5th Dist.), wherein
a decision on a permanent custody motion after 315 days was not found to be a
reversible error because the case “took place over a two day period and produced a
voluminous transcript. The additional time involved in the instant case allowed for
a full consideration of all the evidence presented[.]” See also In re B.F., 2020-Ohio-
3086, ¶ 2 (3d Dist.). Here there was already four days of testimony and three more
were forthcoming.
{¶29} Based on the record before us, we find that the trial court abused its
discretion by dismissing JFS’s permanent custody motion when the hearing was,
relatively speaking, so close to completion. Therefore, JFS’s assignment of error is
sustained.6
Conclusion
{¶30} Having found error prejudicial to JFS in the particulars assigned and
argued, the judgment of the Juvenile Division of the Henry County Court of
6
We note that while there is logic in JFS refiling immediately as the trial court suggested, JFS does have the
right to appeal. The trial court’s final entry seemed to attempt to dissuade JFS from appealing, stating
“Appealing the Court’s dismissal provides absolutely no advantages to [N.A.’s] situation, and in fact, would
continue to delay a final permanency plan for this child.” However, when JFS elected to pursue the appeal,
the trial court denied JFS’s request for a stay of execution, which could be seen as punitive given the
circumstances.
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Common Pleas is reversed. This case is remanded to the trial court for further
proceedings.
Judgment Reversed
and Cause Remanded
ZIMMERMAN, J., concurs.
WILLAMOWSKI, P.J., dissents.
{¶31} A trial court’s decision to follow the timeframes codified by the
General Assembly is not arbitrary, unconscionable, or unreasonable.7 For this
reason, I respectfully dissent.
/hls
7
Appellant argues that the trial court abused its discretion by permitting N.A. to return to Regina. However,
the logic of this argument is undermined by the fact that JFS did not act to prevent N.A. from returning to
Regina’s custody by filing a new complaint and instead pursued this appeal.
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