In re Hayes , 79 Ohio St. 3d 46 ( 1997 )

Francis E. Sweeney, Sr., J.

This case concerns the interpretation of the six-month waiting period imposed by former R.C. 2151.413(A) on a children services agency seeking permanent custody of a child. Based on the intent of the legislation, we hold that former R.C. 2151.413(A) required that a children services agency seeking permanent custody of a child must have had temporary custody of the child for at least six months immediately preceding the filing of the motion for permanent custody. Therefore, we affirm the judgment of the court of appeals.

Former R.C. 2151.413(A) stated that a children services agency that has been granted temporary custody of a child may make a motion for permanent custody “if a period of at least six months has elapsed since the order of temporary custody was issued.” 142 Ohio Laws, Part I, 237. In finding for the CPSU, the trial court held that even though the CPSU had not had current custody of Richard for a continuous period of six months when the motion for permanent custody was filed, the fact that the CPSU had been granted temporary custody at one point more than six months earlier was sufficient to meet the six-month requirement. However, we believe that given the seriousness of permanently divesting a parent of the right to raise a child, the procedural requirements of former R.C. 2151.413(A) should be strictly construed.

It is well recognized that the right to raise a child is an “essential” and “basic” civil right. In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558. Furthermore, a parent’s right to the custody of his or her child has been deemed “paramount.” In re Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293, 297, 369 N.E.2d 1047, 1051-1052. Permanent termination of parental rights has been described as “the family law equivalent of the death penalty in a criminal case.” In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54. Therefore, parents “must be afforded every procedural and substantive protection the law allows.” Id. With this in mind, we turn to the construction of former R.C. 2151.413(A).

In construing a statute, a court’s primary concern is legislative intent. State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of Trustees (1995), 72 Ohio St.3d 62, 65, 647 N.E.2d 486, 488. “In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished.” State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. In the instant case, the logical purpose for the six-month delay imposed upon a children services agency is to give parents an adequate opportunity to rectify the problems which initially forced the child into temporary custody. The procedures of agency interference are generally graduated in nature, often starting with protective supervision of the child at home, then removal and temporary custody, and ultimately permanent custody if warranted. See R.C. 2151.353. The six-month waiting requirement of former R.C. 2151.413(A) was a procedural safeguard imposed before the finality of permanent custody. Therefore, an agency should not be able to bypass the six-month temporary custody requirement before seeking permanent custody.

Furthermore, statutes concerning the same subject matter must be construed in pari materia. United Tel. Co. v. Limbach (1994), 71 Ohio St.3d 369, 372, 643 N.E.2d 1129, 1131. In the present case, the language of former R.C. 2151.414(A) reinforces our holding that the intent of the legislature was to require a children services agency to have current custody for six months before seeking permanent custody. Former R.C. 2151.414(A) stated that “[u]pon the filing of a motion pursuant to section 2151.413 of the Revised Code for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child, the court shall schedule a hearing.” (Emphasis added.) 142 Ohio Laws, Part I, 238.

Former R.C. 2151.414(A), when read in pan materia with former 2151.413(A), would indicate that the legislature intended that the children services agency have current temporary custody when moving for permanent custody under the latter statute. In re Miller (1995), 101 Ohio App.3d 199, 655 N.E.2d 252. The use of the words “has custody” in former R.C. 2151.414(A) anticipated that the child was currently in the agency’s temporary custody.

The procedural mandates set forth by the legislature in former R.C. 2151.413(A) allowed parents a final opportunity to redeem past indiscretions and conform to the requirements for ultimate reunification with their children. A children services agency should not be allowed to deprive parents of this opportunity. Based on the purpose and intent of the legislation, and given the gravity of permanently terminating parental rights, we conclude that the CPSU was required to have had current custody of Richard for at least six months at the time of its motion for permanent custody on December 2, 1994. Since the CPSU failed to comply with this requirement, the trial court had no authority to grant the motion for permanent custody. Therefore, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Resnick and Pfeifer, JJ., concur. Douglas, Cook and Lundberg Stratton, JJ., dissent.