In re S.M. , 2021 Ohio 50 ( 2021 )

[Cite as In re S.M., 2021-Ohio-50.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: S.M. C.A. No. 29695
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 18 06 0513
DECISION AND JOURNAL ENTRY
Dated: January 13, 2021
SCHAFER, Judge.
{¶1} Appellant, J.W. (“Father”), appeals from an order of the Summit County Court of
Common Pleas, Juvenile Division, that placed his minor child in the legal custody of a maternal
aunt (“Aunt”) under an order of protective supervision by Summit County Children Services Board
(“CSB”). While this appeal was pending, the child was removed from Aunt’s home and returned
to the custody of CSB. This Court dismisses the appeal for the reasons below.
I.
{¶2} Father is the biological father of S.M., born April 30, 2004. The child’s mother has
been deceased for several years.
{¶3} After the death of S.M.’s mother, Aunt was named the child’s legal guardian
through a probate court proceeding. S.M. resided with Aunt for approximately five years before
this case began.
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{¶4} On July 7, 2018, CSB filed its complaint in this case. S.M. was removed from
Aunt’s custody and was later adjudicated a dependent child because of the child’s serious
behavioral problems, including a recent suicide attempt and psychiatric hospitalization, and Aunt’s
unwillingness and/or inability to maintain the child in her home.
{¶5} Father’s paternity was established during this case. He worked on case plan goals
including developing a parent-child relationship with S.M. Ultimately, Father and Aunt each
moved for legal custody of S.M. and the matter proceeded to a hearing on the competing
dispositional motions. Following a hearing before a magistrate, S.M. was placed in the legal
custody of Aunt under an order of protective supervision by CSB.
{¶6} Father filed objections to the magistrate’s decision. On February 1, 2020, the trial
court overruled Father’s objections and placed S.M. in the legal custody of Aunt under an order of
protective supervision. Father appeals from the February 1 order and raises two assignments of
error.
{¶7} Initially, this Court must determine whether it has authority to address the merits
of Father’s appeal. To begin with, “Article IV, Section 3(B)(2) of the Ohio Constitution limits this
Court’s appellate jurisdiction to the review of final judgments of lower courts.” In re T.P., 9th
Dist. Summit No. 27539, 2015-Ohio-3448, ¶ 9. Although this Court has long recognized that a
judgment placing a child in the legal custody of a relative constitutes a final, appealable order, it
has never explicitly addressed whether a legal custody order is final and appealable if that order is
coupled with an order of protective supervision by the agency. See, e.g., In re S.D., 9th Dist.
Summit No. 29415, 2020-Ohio-3267.
{¶8} An award of legal custody, standing alone, “is intended to be permanent in nature”
and typically terminates the ongoing involvement of the children services agency and the juvenile
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court. See, e.g., R.C. 2151.42(B); R.C. 2151.417(C)(3). In this case, however, the trial court also
imposed an order of protective supervision with the legal custody disposition.
{¶9} An order of protective supervision is not imposed at the conclusion of a juvenile
case because it requires continuing involvement and review by the juvenile court and the children
services agency. For example, the agency must continue to offer case plan services for the child;
review the case plan and its effectiveness periodically and determine whether changes should be
made; and the trial court must continue to conduct regular review hearings while a child is under
protective supervision. See, e.g., Ohio Adm.Code 5101:2-38-10(B); Ohio Adm.Code 5101:2-38-
09(A)(3); Ohio Adm.Code 5101:2-40-02(C) and (D); R.C. 2151.417(C)(3)(a).
{¶10} Aside from a potential finality problem, the February 1 legal custody disposition
appealed by Father is no longer a live controversy. No one disputes that, less than two months
after Father appealed, S.M. was again removed from Aunt’s custody and placed in the emergency
temporary custody of CSB. CSB presented this Court with journal entries to demonstrate that the
child’s adjudication had changed. The trial court found that S.M. had not been complying with
her mental health treatment, was again exhibiting serious behavioral problems, and Aunt was
unable or unwilling to provide an ongoing placement for the child. The trial court also found that
Father’s contact with S.M. had been detrimental to her. Therefore, the trial court denied Father’s
alternative request for temporary custody of S.M. and placed her in the emergency temporary
custody of CSB.
{¶11} The parties do not challenge the trial court’s authority to remove S.M. from Aunt’s
custody, nor do they dispute that S.M. no longer resides with Aunt but is back in the custody of
CSB. Father has not challenged the trial court’s denial of his alternative request to place the child
in his temporary custody. Moreover, a temporary custody disposition is not a final and appealable
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order unless it immediately follows the initial adjudication of the child, as the initial adjudication
may never be relitigated. See In re Murray, 52 Ohio St.3d 155 (1990), syllabus; In re Adams, 115
Ohio St.3d 86, 2007-Ohio-4840; R.C. 2151.011(B)(55) (Temporary custody is a disposition that
“may be terminated at any time at the discretion of the court[.]”).
{¶12} This Court’s role is to decide only “actual controversies” that “can be carried into
effect, and not to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.” Giovanini
v. Bailey, 9th Dist. Summit Nos. 28631 and 28676, 2018-Ohio-369, ¶ 34. If, while an appeal is
pending, an event occurs that renders it impossible for this Court to provide any effective relief to
the appellant, this Court will dismiss the appeal as moot. Id.{¶13} Because the trial court subsequently removed S.M. from the legal custody of Aunt,
its February 1 order is no longer in effect. Consequently, this Court cannot provide Father with
the relief he seeks even if it were to find merit in his arguments. The appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
DAVID M. LOWRY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.