In re A.S.

Ringland, Judge,

concurring.

{¶ 66} Based on the facts of this case, I concur in judgment. However, I find it troublesome that the Ohio Supreme Court’s reading of R.C. 2151.353(A)(5) in In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, 852 N.E.2d 1187, limits the juvenile court’s power to fulfill its statutory obligations. According to R.C. 2151.01(A), the Ohio General Assembly charged the juvenile courts with providing for “the care, protection, and mental and physical development of children subject to Chapter 2151 of the Revised Code.” In doing so, determining a child’s best interests is the paramount responsibility of the juvenile court when considering custody issues and whether or not to terminate a parent’s rights under R.C. 2151.414(B). Specifically, that section parcels out several factors a court is required to consider while determining the child’s best interests. Although I agree with the majority that the juvenile court correctly considered these factors, I write separately to express my discontent that juvenile courts are not granted the discretion to order a planned permanent living arrangement (“PPLA”) absent a request for one from an involved children services agency.

{¶ 67} As Justice Pfeifer noted in AS.’s dissenting opinion, a major difference exists between an initial determination that a child is abused, dependent, or neglected and subsequent modifications of initial orders. During the preliminary adjudication phase, children service agencies play an important role and may be in a better position to determine the best placement option for the affected child. However, once the initial orders need modification or termination, the juvenile court is “in the best position to determine whether a permanent placement is in the best interests of the child.” Id. at ¶ 45.

{¶ 68} Nevertheless, because the Ohio Supreme Court’s current reading of R.C. 2151.353(A) prohibits a juvenile court from sua sponte ordering a PPLA, children service agencies have more authority and discretion than a juvenile court when determining what placement is best for a child. As one writer aptly stated, “The Ohio Supreme Court’s decision in AB. emasculates the role of * * * the judge in child protection hearings in Ohio. The decision assumes that the agency is the sole (or best) arbiter of the child’s best interests by giving broad authority to the state child welfare agency. * * * Only when the agency has first determined a PPLA placement to be the child’s best interest may a judge determine that the placement is in fact in the child’s best interest. This is, to put it mildly, an illogical result. Such a result ties the hands of judges and [guardian ad litems] who disagree with the agency’s determination of the child’s best interest, and it may even prevent the child’s true best interests from being achieved.” McGill, Agency Knows Best? Restricting Judges’ Ability to Place Children in Aternative Planned Permanent Living Arrangements (2007), 58 Case W. Res.L.Rev. 247.

{¶ 69} In addition to usurping the judge’s role in determining the child’s best interests, prohibiting a juvenile court from ordering a PPLA also leaves a children services agency’s decision not to request one unreviewable. Unlike the juvenile court, whose decision is reviewed by higher courts (if not its electorate), agency decisions are not reviewable under the current reading of R.C. 2151.353(A)(5) because if children services refuses to request a PPLA, the juvenile court cannot even consider whether such a plan would be in the child’s best interest.

{¶ 70} Because the ultimate responsibility of determining a child’s best interests rests with the juvenile court, prohibiting it from ordering or considering that a PPLA may be in the child’s best interest absent a request from a children services agency may be a violation of the separation-of-powers doctrine.

{¶ 71} I realize that the parties to the case at bar did not raise this constitutional issue. However, I cannot ignore that the outcome of vesting discretion to implement a PPLA with an agency rather than the juvenile court (whether through neglect or design) is the “tail wagging the dog” and substantially curtails the juvenile court’s ability to fulfill its statutory obligations. Therefore, and until the Ohio Supreme Court reconsiders its interpretation and vests discretion in juvenile courts to order PPLAs, I concur in judgment only.