In re T.K.

[Cite as In re T.K., 2014-Ohio-576.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: T.K. C.A. No. 26916
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 12-03-0152
DECISION AND JOURNAL ENTRY
Dated: February 19, 2014
CARR, Judge.
{¶1} Appellant, Sara L. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division. This Court affirms.
I.
{¶2} Mother and Dennis K. (“Father”) are the unmarried parents of T.K., born March
7, 2012. When T.K. tested positive for marijuana at his birth, Summit County Children Services
(“CSB”) initiated proceedings in juvenile court based on allegations of abuse and dependency.
At the shelter care hearing, the parents stipulated to probable cause for removal of the child and
agreed to T.K.’s placement in the emergency temporary custody of the maternal grandparents
(“grandparents”) under the protective supervision of CSB. One month before T.K.’s birth, the
same grandparents had been granted legal custody of the first-born child of Mother and Father,
Ty.K, born May 16, 2009. That child had been placed with the grandparents since he was one-
year old, following an adjudication of abuse, neglect, and dependency.
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{¶3} In regard to T.K., the parents initially declared an intention to regain his custody.
They stipulated to allegations of abuse, under R.C. 2151.031(C), and dependency, under R.C.
2151.04(D), and received a case plan requiring them to maintain a sober lifestyle, increase their
parenting knowledge, and participate in mental health assessments. At the June 2012
dispositional hearing, the parents agreed with CSB’s request for temporary custody and
placement with the grandparents.
{¶4} In August 2012, CSB moved for legal custody to the grandparents based on the
parents’ lack of case plan progress, their poor record of visiting, a lack of bonding, and the
child’s need for permanence. T.K. was reportedly doing well in the grandparents’ home where
he resided with his older brother. Mother moved for legal custody to herself with protective
supervision in the agency, but subsequently withdrew that request.
{¶5} At the final hearing in the trial court, both parents waived trial on CSB’s motion
and consented to an award of legal custody to the grandparents. On December 31, 2012, the
magistrate granted legal custody of the ninth-month-old child to the grandparents. The parents
objected to the magistrate’s decision, claiming a lack of reasonable efforts findings and an
erroneous interpretation of the privilege to determine the religious affiliation of the child. The
trial court overruled the objections and issued judgment on May 6, 2013. Mother now appeals
from the judgment of the trial court and assigns two errors for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S FAILURE TO ISSUE WRITTEN FINDINGS OF FACT
STATING THE REASONS SUPPORTING ITS “REASONABLE EFFORTS”
DETERMINATIONS CONSTITUTES PREJUDICIAL AND REVERSIBLE
ERROR AS A MATTER OF LAW.
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{¶6} Mother argues that the trial court erred in failing to make a finding that the agency
made reasonable efforts to prevent the continued removal of the child from the parents’ care and
in failing to issue written findings of fact setting forth the reasons supporting its determination as
required by R.C. 2151.419(A)(1) and (B)(1). See In re J.G., 9th Dist. Summit No. 12CA0037,
2013-Ohio-417, ¶ 31.
{¶7} The magistrate had found that CSB “made all reasonable efforts to prevent the
continued need for removal of this child from the parents’ care,” encouraged the parents to
complete case plan services, and found that a return of the child to the parents’ at the present
time was contrary to the child’s best interest. The magistrate also acknowledged and adopted
“the parties’ agreement that custody with the grandparents is in the child’s best interest.”
{¶8} Mother raised this matter in her objections to the magistrate’s decision. The trial
court overruled Mother’s objection on the grounds that (1) the magistrate did, in fact, make a
finding of reasonable efforts; (2) the magistrate found that the agency’s efforts included
encouraging the parents to complete case plan services; and (3) that Mother had, in any event,
agreed to the award of legal custody to the grandparents. The trial judge found the magistrate’s
reasonable efforts finding to be sufficient and further found that Mother could not object to the
finding because she had agreed to the granting of legal custody to the grandparents.
{¶9} Even assuming an insufficiency under the statute in the reasonable efforts
findings, under the circumstances of this case, we agree with the trial court’s conclusion that
Mother cannot assert error in the trial court’s failure to prevent something to which she had
agreed. The record reflects that Mother not only consented to the award of legal custody to the
grandparents, but also specifically waived her right to trial under circumstances where Mother
was represented by counsel. There is nothing in the record to suggest that Mother did not
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understand the import of her decisions. The Fourth District has similarly held that by
“stipulating to [her daughters’] disposition, [the mother] implicitly agreed to all aspects of that
disposition, including the fact that the agency made reasonable efforts to eliminate the girls’
continued removal from their home.” In re Ohm, 4th Dist. Hocking No. 05CA1, 2005-Ohio-
3500, ¶ 50.
{¶10} Accordingly, Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN LIMITING
PARENTS’ RIGHT TO DETERMINE THE JUVENILE’S RELIGIOUS
AFFILIATION.
{¶11} Mother contends that the trial court erred in too narrowly interpreting the statutory
privilege to determine her child’s religious affiliation under R.C. 2151.353(A)(3)(c). She argues
that the statute not only permits her to determine the child’s religious affiliation as “none” and
thereby bar the custodians from engaging him in church activities designed for membership, but
also entitles her to an order that the legal custodians “shall not in any way, teach, indoctrinate, or
actively expose T.K. to any religion, Catholic or otherwise.” For the following reasons, we find
the argument to be without merit.
{¶12} Following the adjudication of T.K. as an abused and dependent child, the trial
court granted legal custody of the child to the maternal grandparents. R.C. 2151.353(A)(3).
“Legal custody,” as that term is used in R.C. Chapter 2151, means “a legal status that vests in the
custodian the right to have physical care and control of the child and to determine where and
with whom the child shall live, and the right and duty to protect, train, and discipline the child
and to provide the child with food, shelter, education, and medical care, all subject to any
residual parental rights, privileges, and responsibilities.” R.C. 2151.011(B)(21). Legal custody
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is intended to be permanent in nature, and the named legal custodians are to assume
responsibility for the care and supervision of the child until the child reaches the age of majority.
R.C. 2151.353(A)(3)(a) and (b). In addition, the juvenile court retains jurisdiction over any child
for whom it issues an order of disposition pursuant to this section until the child attains the age of
eighteen years. R.C. 2151.353(E)(1).
{¶13} “Residual parental rights, privileges, and responsibilities” as that term is used in
R.C. Chapter 2151, are “those rights, privileges, and responsibilities remaining with the natural
parent after the transfer of legal custody of the child, including, but not necessarily limited to, the
privilege of reasonable visitation, consent to adoption, the privilege to determine the child’s
religious affiliation, and the responsibility for support.” (Emphasis added.) R.C.
2151.011(B)(48). See also R.C. 2151.353(A)(3)(c), similarly describing residual parental rights,
privileges, and responsibilities.
{¶14} The subject of Mother’s privilege to determine her child’s religious affiliation was
initially raised before the magistrate during consideration of CSB’s motion for legal custody to
the grandparents. Mother first affirmed that she waived her right to trial and consented to the
transfer of T.K. into the legal custody of the grandparents, and further indicated that she
understood such waiver and consent are intended to be permanent. Father made the same waiver
and consent. At that point, and in regard to the parent’s residual parental rights, privileges and
responsibilities, Mother’s attorney asserted that the parents objected to the grandparents raising
T.K. in the Catholic faith. Mother stated: “I would rather not have * * * him raised as any type
of religion, because I feel like that’s something that when he gets older he can decide for
himself.” Mother added that she would rather the child not go to mass. In response to a request
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to suggest a nondenominational prayer that might be shared at bedtime, Mother stated: “I would
just rather keep religion out of it completely.”
{¶15} Mother’s attorney reported to the court that his client “is opposed to not just the
religious affiliation, such as a baptism, but also any religious upbringing or indoctrination or
teaching of that faith.” When Mother was asked if she wanted T.K. raised as an atheist or
agnostic, she replied:
I don’t feel like I should push any type of religion on him, on either one. I feel
like they should grow up and decide. And whether they want to have their crosses
in the house, I don’t care about that. They can talk about God however they want
to. I just don’t want them to say that -- like give them ideas that -- okay, you
know, all the stuff that’s in the Bible, like, I don’t want them taught stuff that’s in
the Bible. I want them to grow up and make their own decisions. * * * It’s their
decision when they get older whether they want to believe in God or not.
Mother’s determination of her child’s religious affiliation was indicated to be “none.”
{¶16} Thereupon, the magistrate issued a decision, granting legal custody to the
grandparents and indicating that both parents had agreed to the award. In addition, the
magistrate found that the parents wanted the child to have no religious affiliation. The
magistrate acknowledged the grandparents’ right to exercise their own faith and found that the
parents recognized that right as well. Accordingly, the magistrate observed that it would not be
possible to avoid all exposure of the child to the Catholic faith. The magistrate relied upon a
common and ordinary definition of affiliation, and construed it as meaning “to be adopted a
member of a particular organization or association.” Therefore, she found that the parents were
entitled to require simply that the grandparents not engage the child in church activities or rituals
designed for such membership, including those required for membership into the Catholic
Church.
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{¶17} Mother objected to this finding by the magistrate and argued that it was too
narrow of an interpretation of her residual parental privilege to determine her child’s religious
affiliation. She claimed that the privilege should extend to all matters involving religion.
Mother, therefore, sought reversal of the magistrate’s decision and an order that legal custodians
“shall not in any way, teach, indoctrinate, or actively expose the child to any religion, Catholic or
otherwise.”
{¶18} In overruling Mother’s objection, the trial judge noted that the statute does not
define “religious affiliation” and that Ohio case law offers no guidance on the meaning of the
term. The court found that the magistrate did not err in her determination of the scope of the
parents’ residual privilege, and also found that the court was unable to place too great a burden
on the legal custodians. The trial judge specifically found that “exposure is not tantamount to
affiliation” and that Mother’s desire to prevent the child’s exposure to any religious practice is
impractical. Accordingly, the trial court fundamentally adopted the decision of the magistrate
and ordered the legal custodians to not engage the child in church activities designed for
membership, including rituals necessary for membership into the Catholic Church. Further,
because the parties decided to reach a mutually agreeable visitation schedule, the court also
ordered that the parties should utilize the scheduling of their visitation times to facilitate the
parents’ right to determine the child’s religious affiliation as well as the legal custodians’ right to
exercise their religious beliefs.1
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On appeal, Mother questions the meaning of the trial court’s statement that the parties
should use the scheduling of their visitation times to facilitate the parents’ right to determine the
child’s “religious affiliation” and the legal custodians’ right to exercise their religious beliefs. It
seems reasonable to conclude that one possible example might be for the parents to care for the
child while the grandparents attend their own religious services.
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{¶19} On appeal, Mother claims that the juvenile court erred in too narrowly defining
her privilege to determine the child’s religious affiliation. She again seeks an order that the legal
custodians “shall not in any way, teach, indoctrinate, or actively expose T.K. to any religion,
Catholic or otherwise.” Mother argues that the legal custodians should not be permitted to
“dictate or control [T.K.’s] connection, thoughts and feelings in all matters pertaining to religion
or religious belief in regards to the supernatural or supreme beings.” Absent such an order,
Mother maintains that the legal custodians could, theoretically, indoctrinate the child in a
religion that does not observe formal membership, such as Buddhism, or even subject T.K. to the
sacrifice, cooking, and eating of animals pursuant to an obscure religion. See Torcaso v.
Watkins, 367 U.S. 488, 495, n. 11 (1961); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 525 (1993).
{¶20} Before addressing the legal question before this Court, we make some
observations regarding the factual background of this case. Both parents agreed to the award of
legal custody to the grandparents. Mother withdrew her own motion for legal custody, and
neither she nor Father offered the name of any other potential legal custodian or options for the
care of T.K to the trial court. Furthermore, the parents made their decision based upon a great
deal of personal knowledge. Mother was apparently raised in the home. The parents’ first child
lived with these relatives for three years, and T.K. resided with them for nearly a year at the time
of the legal custody determination. In having the grandparents as legal custodians of their child,
the parents benefitted from a liberal visitation and support policy. The parents did not feel a
need to seek a court-order for visitation because, as they explained, they had been able to
satisfactorily arrange visits at their convenience for the last several years. In addition, CSB and
the trial court had been accommodating regarding the parent’s support requirement, preferring,
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where possible, that the parents expend their limited funds on financing visits with their child.
Finally, we note that the parents have not challenged the award of legal custody to the
grandparents on appeal. While the grandparents have no right to serve as legal custodians, it is
natural in our society to consider placement with such close relatives and extended family. See
Moore v. City of East Cleveland, 431 U.S. 494, 503-505 (1977). Mother’s choice of legal
custodians, therefore, seems to be not only informed, but reasonable and well within the best
interests of the child.
{¶21} Turning to the legal question before us, this Court must consider the meaning of
“the determination of religious affiliation” in the context of a legal custody case. Here, the
parents objected to the legal custodians raising the child in the Catholic faith and have expressed
their privilege to determine their child’s religious affiliation by choosing no religious affiliation.
Accordingly, the trial court ordered the legal custodians to not engage the child in church
activities designed for membership, including requirements necessary for membership in
Catholic Church. We must decide whether the trial court erred in failing to also bar the legal
custodians from permitting the child to experience any teaching, indoctrination, exposure,
thoughts, or feelings regarding religion, the supernatural, or supreme beings. Mother has cited
no legal authority in support of this expansive interpretation of the statutory language.
{¶22} We have previously explained that the juvenile court’s authority in abuse,
dependency, and neglect cases is strictly governed by a comprehensive statutory scheme set forth
in Chapter 2151 of the Ohio Revised Code. See e.g., In re A.P., 9th Dist. No. 12CA0022-M,
2012-Ohio-3873, ¶ 16; see also R.C. 2151.07. Juvenile courts are courts of limited jurisdiction
and their powers are created by statute. See, e.g,. In re J.D., 172 Ohio App.3d 288, 2007-Ohio-
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3279, ¶ 8, citing Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio-7107, ¶ 25 (Stratton, J.
dissenting); see also R.C. 2151.23.
{¶23} The Ohio General Assembly has provided that when a child is placed in the legal
custody of another, the natural parents retain “the privilege to determine the child’s religious
affiliation.” R.C. 2151.353(A)(3)(c); R.C. 2151.011(B)(48). The legislature has reserved no
further rights, privileges or responsibilities for the parents in regard to religion. Chapter 2151 of
the Revised Code does not offer a definition of “religious affiliation.” The statute is narrowly
written and does not, by its terms, invite an expansive interpretation.
{¶24} “[W]hen words are not defined in a statute they are to be given their common and
ordinary meaning absent a contrary legislative intent.” Moore Personnel Serv., Inc. v. Zaino, 98
Ohio St.3d 337, 2003-Ohio-1089, ¶ 15. See also R.C. 1.42. The common and ordinary meaning
of “affiliate” is “to attach as a member or branch,” to “bring or receive into close connection,”
and “to join as a member.” Webster’s Third New Internatl. Dictionary 35 (1993). The word
“determine” is also significant to the exercise of the privilege. The common and ordinary
meaning of the word “determine” is “to fix conclusively or authoritatively” and “to settle or
decide by choice of alternatives or possibilities.” Webster’s Third New Internatl. Dictionary 616
(1993). Therefore, in accordance with the common and ordinary meaning of the relevant words
in the legislation, Mother retains the privilege to decide or choose a close connection to or
membership in a religion for her child or the lack thereof. In selecting “none,” Mother has
determined a religious affiliation for her child. See Everson v. Board of Education of Ewing, 330
U.S. 1, 15-16 (1947) (finding that the establishment clause protects religious belief as well as
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disbelief).2 The privilege does not allow a parent to attempt to control the child’s every exposure
to anything remotely religious or spiritual. Indeed, such an order would not likely be enforceable
or within the powers of any court.
{¶25} Nothing in the statute or the common meaning of the relevant terms supports the
expansive interpretation suggested by Mother. Mother has cited no controlling legal authority in
support of her position, and we are not persuaded by her arguments to apply the requested
expansive interpretation to a narrowly written statute. Mother has failed to demonstrate any
error suggesting that the trial court either violated the statute or abused its discretion.
{¶26} Moreover, Mother’s statement to the trial court that she “is opposed to not just the
religious affiliation, such as a baptism, but also any religious upbringing or indoctrination or
teaching of that faith” reflects an acknowledgement of the common meaning of the statutory
language and a realization that she is asking for more than the statute provides. (Emphasis
added.) Furthermore, this Court will not presume that the legislature intended, by permitting the
parents to determine the child’s religious affiliation, to limit the free exercise of religion by the
legal custodians. In exercising her residual parental privilege to determine the religious
affiliation of her child, Mother may not control the child’s every exposure to religion beyond this
common understanding of the phrase.
{¶27} There is no reason to disturb the trial court judgment at this point. Mother agreed
to the placement of her child in the legal custody of the grandparents, a home with which she
was very familiar. The trial court has held that the parents are privileged, under R.C.
2151.353(A)(3)(c), to determine the child’s religious affiliation to be “none” and ordered that the
2
CSB argues, in its responsive brief, that the privilege to determine a religious affiliation
does not allow for a determination that the child shall have no affiliation, but CSB has not
assigned this as error.
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legal custodians are, accordingly, to refrain from engaging the child in church activities designed
for membership. The statute offers the parents no further rights, privileges or responsibilities.
{¶28} Mother’s second assignment of error is overruled.
III.
{¶29} Mother’s two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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BELFANCE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
ROBERT BENEDICT, Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
TONY PAXTON, Guardian Ad Litem.