In re E.C.

[Cite as In re E.C., 2019-Ohio-3791.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: E.C., :
No. 18AP-878
(M.W., : (C.P.C. No. 15JU-6089)
Appellant). : (REGULAR CALENDAR)
In re: D.C., Jr., :
No. 18AP-882
(M.W., : (C.P.C. No. 16JU-14039)
Appellant). : (REGULAR CALENDAR)
In re: E.C., :
No. 18AP-902
(D.C., Sr., : (C.P.C. No. 15JU-6089)
Appellant). : (REGULAR CALENDAR)
In re: D.C., Jr., :
No. 18AP-907
(DC., Sr., : (C.P.C. No. 16JU-14039)
Appellant). : (REGULAR CALENDAR)
D E C I S I O N
Rendered on September 19, 2019
On brief: Robert J. McClaren, for appellee Franklin County
Children Services. Argued: Robert J. McClaren.
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellant M.W. Argued: Robert D. Essex.
On brief: William Paul Bringman, for appellant D.C., Sr.
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 2
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relation, Juvenile Branch
KLATT, P.J.
{¶ 1} Appellants, M.W. ("mother") and D.C., Sr. ("father"), appeal judgments of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
that granted permanent custody of E.C. and D.C., Jr., to appellee, Franklin County Children
Services ("FCCS"). For the following reasons, we affirm those judgments.
{¶ 2} On April 26, 2015, mother gave birth to E.C. Mother was unwed when E.C.
was born. Within days of E.C.'s birth, father signed an affidavit acknowledging his paternity
of E.C.
{¶ 3} FCCS filed a complaint alleging that E.C. was a dependent child on May 12,
2015, when E.C. was only two weeks old. The complaint stated that mother suffered from
multiple mental illnesses, including borderline personality disorder, bipolar disorder, and
post-traumatic stress disorder. Mother did not consistently take the medication prescribed
to treat her mental disorders. Additionally, mother lacked stable housing and was
unemployed. FCCS asked the trial court to adjudicate E.C. a dependent child and grant it
an order of protective supervision over E.C.
{¶ 4} On May 15, 2015, a magistrate granted FCCS a temporary order of protective
supervision over E.C. In a judgment dated July 31, 2015, the trial court found E.C. to be a
dependent child and placed E.C. under court-ordered protective supervision. Less than one
year later, on March 22, 2016, FCCS assumed temporary custody of E.C. pursuant to a
magistrate's order. In a judgment entered September 12, 2016, the trial court officially
terminated the court-ordered protective supervision of E.C. and committed E.C. to the
temporary custody of FCCS.
{¶ 5} Mother gave birth to D.C., Jr. on November 25, 2016. At the time of D.C.,
Jr.'s birth, father was in prison serving a 16-month sentence for committing domestic
violence against mother. Father never legally established his paternity of D.C., Jr., but the
parties presume that father is D.C., Jr.'s father.
{¶ 6} In a complaint filed three days after D.C., Jr.'s birth, FCCS requested that the
trial court find D.C., Jr. a dependent child and grant it temporary custody. The complaint
alleged that the hospital would not release D.C., Jr. because mother was homeless. Also,
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 3
according to the complaint, FCCS had obtained temporary custody of E.C. due to mother's
lack of stable housing, failure to complete parenting classes, and refusal to attend mental
health or anger management counseling.
{¶ 7} On November 29, 2016, the magistrate granted FCCS a temporary order of
custody over D.C., Jr. In a judgment entered December 7, 2016, the trial court adjudicated
D.C., Jr. a dependent child and maintained the temporary order of custody issued by the
magistrate. After a dispositional hearing, the trial court issued a judgment on February 21,
2017 that reaffirmed its finding that D.C., Jr. was a dependent child and committed D.C.,
Jr. to FCCS' temporary custody.
{¶ 8} On February 7, 2018, FCCS moved for permanent custody of both E.C. and
D.C., Jr. In the motions, FCCS alleged that both children had been in FCCS' temporary
custody for 12 or more months of a consecutive 22-month period. Regarding mother, the
motion stated that she continued to lack independent or stable housing, she refused to
participate in counseling for her mental health issues, she displayed aggressive behavior
and used profane language during visits with the children, she failed to complete anger
management counseling and parenting classes as required in the case plan, and she had a
criminal history that included charges of assault and domestic violence. With regard to
father, the motion stated that he had been incarcerated multiple times since E.C.'s birth
and he had a history of committing domestic violence against mother.
{¶ 9} The trial court held a hearing on FCCS' motions for permanent custody on
September 13, 2018. On that date, both parents were in the custody of the Franklin County
Sheriff, requiring the trial court to order them conveyed from the jail to the hearing. Both
mother and father testified at the hearing. Additionally, the caseworker assigned to the
family and the guardian ad litem for the children also testified. The caseworker and
guardian ad litem both recommended that the trial court grant FCCS permanent custody
of the children.
{¶ 10} On November 1, 2018, the trial court entered judgments granting FCCS
permanent custody of E.C. and D.C., Jr. The trial court found by clear and convincing
evidence that, pursuant to R.C. 2151.414(B)(1), the children had been in FCCS' custody for
12 months out of a consecutive 22-month period and awarding FCCS permanent custody
was in the children's best interests.
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 4
{¶ 11} Mother now appeals the November 1, 2018 judgments, and she assigns the
following errors:
[1.] The trial court was without jurisdiction to grant permanent
custody of D.C. Jr. to Franklin County Children's Services as
the child had never been adjudicated a dependent minor.
[2.] The trial court's finding that there were no relative
placement options was not supported by the evidence and the
court, therefore, committed reversible error by terminating
Appellant's parental rights.
{¶ 12} Father also appeals the November 1, 2018 judgments, and he assigns as error:
As to Appellant father, the trial court erred in granting the
motions for permanent court commitment of the minor
children in these cases.
{¶ 13} By mother's first assignment of error, she argues that the trial court lacked
jurisdiction to grant permanent custody of D.C., Jr. to FCCS because the court did not first
properly adjudicate D.C., Jr. a dependent child. We cannot resolve this argument because
we do not possess the jurisdiction necessary to review any alleged error in the adjudication
of D.C., Jr.
{¶ 14} Despite mother's assertion that no adjudication occurred, the trial court did
adjudicate D.C., Jr. a dependent child. In the judgment entered on December 7, 2016, the
trial court found that D.C., Jr. was dependent as defined in R.C. 2151.04(C), and it
maintained a temporary order of custody originally issued by the magistrate on
November 29, 2016. Subsequent to a dispositional hearing, the trial court issued a
judgment on February 21, 2017 that reaffirmed its adjudication of D.C., Jr. as a dependent
child and committed him to FCCS' temporary custody.
{¶ 15} In actuality, by her first assignment of error, mother complains not about the
lack of a dependency adjudication, but about the trial court's failure to conduct an
adjudicatory hearing that complied with Juv.R. 29. According to mother, the trial court
erred by not making the advisements and findings required by Juv.R. 29(B), and by not
requesting the parties to admit or deny the allegations in the complaint as required by
Juv.R. 29(C). In response, FCCS argues that this court lacks jurisdiction to determine
whether the trial court erred as alleged because mother failed to timely appeal the
February 21, 2017 judgment.
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 5
{¶ 16} Generally, a party who wishes to appeal a judgment must file a notice of
appeal within 30 days from the entry of a final, appealable order. App.R. 4(A). Failure to
comply with the requirements of App.R. 4(A) results in a fatal jurisdictional defect. In re
H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, ¶ 17. "Where a notice of appeal is not filed
within the time prescribed by law, the reviewing court is without jurisdiction to consider
issues that should have been raised in the appeal." State ex rel. Pendell v. Adams Cty. Bd.
of Elections, 40 Ohio St.3d 58, 60 (1988).
{¶ 17} In a juvenile custody case, a trial court determines whether a child is abused,
neglected, or dependent in the beginning stage of the proceedings, called the adjudicatory
stage. In re A.N., 181 Ohio App.3d 793, 2009-Ohio-1873, ¶ 10 (8th Dist.). The case then
proceeds to the dispositional stage, where the trial court makes one of the dispositions listed
in R.C. 2151.353. Id. The potential dispositions include the commitment of a child to the
temporary custody of a public children services agency. R.C. 2151.353(A)(2)(a). An
adjudication that a child is dependent followed by a disposition awarding temporary
custody to a pubic children services agency pursuant to R.C. 2151.353(A)(2) constitutes a
final, appealable order. In re H.F. at ¶ 8; In re Murray, 52 Ohio St.3d 155 (1990), syllabus.
When the adjudicatory and dispositional orders are separate orders, they combine to form
a final, appealable order. In re F.B., 9th Dist. No. 27762, 2016-Ohio-3434, ¶ 10.
{¶ 18} In the case at bar, FCCS initially assumed temporary custody of D.C., Jr. on
November 29, 2016 pursuant to a temporary order of custody. A "temporary order of
custody," abbreviated "TOC," is "[a] pre-dispositional custody order made by the court that
places a child in the agency['s] custody, or an individual's custody, pending the adjudication
of the complaint." Franklin County Children Services, 2019 Resource Guide, 32,
http://childrenservices.franklincountyohio.gov/public/documents/PDF103B5E8A-
03F5DEADAF277AD4D863.pdf (accessed Sept. 16, 2019). The trial court then adjudicated
D.C., Jr. a dependent child and continued the temporary order of custody. The trial court
did not award temporary custody of D.C., Jr. to FCCS pursuant to R.C. 2151.353(A)(2)(a)
until the February 21, 2017 judgment, in which the court granted FCCS a temporary court
commitment regarding D.C., Jr. A "temporary court commitment," abbreviated "TCC," is
a "[d]ispositional custody alternative in which the court orders a child to be placed in the
temporary custody of the agency, or an individual, for a limited period of time." 2019
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 6
Resource Guide at 32. Because the February 21, 2017 judgment contains the reaffirmed
adjudication and a disposition under R.C. 2151.353, it is a final, appealable order.
{¶ 19} Mother, however, did not appeal the February 21, 2017 judgment. She
instead waited until her appeal of the permanent custody determination to raise issues
related to the adjudication. Under App.R. 4(A), the period for appealing errors in the
adjudication of D.C., Jr. as a dependent child closed with the lapse of the 30-day window to
appeal the February 21, 2017 judgment. We, therefore, lack the jurisdiction necessary to
address any adjudication issues. See In re P.S., 10th Dist. No. 08AP-1023, 2009-Ohio-1545,
¶ 8 (because the appellants failed to timely appeal the dependency adjudications and
original disposition, the appellate court lacked jurisdiction to consider the appellants'
argument that the trial court failed to comply with Juv.R. 29 during the adjudicatory
hearing); In re B.D., 4th Dist. No. 08CA3016, 2008-Ohio-6273, ¶ 22 (same); In re Roberts,
5th Dist. No. 04 CA 29, 2005-Ohio-2843, ¶ 19 (same). In this appeal, mother may only
raise issues that arose after the February 21, 2017 judgment. In re H.F. at ¶ 17; accord In
re E.R., 10th Dist. No. 17AP-82, 2017-Ohio-7188, ¶ 50 (holding that, given the appellant's
failure to timely appeal the dependency adjudication, issues related to that adjudication
were settled and could not be litigated in an appeal of a permanent custody award).
{¶ 20} Mother disputes this conclusion by arguing that she did not waive her
challenge to the adjudication by failing to assert it before the trial court. Mother
misunderstands the nature of the impediment to our review of her arguments. The lack of
jurisdiction, not the waiver doctrine, prevents us from deciding her first assignment of
error.
{¶ 21} Mother also relies on the decision of In re Fennel, 4th Dist. No. 01CA45
(Jan. 23, 2002), to assert that the February 21, 2017 judgment is not a final, appealable
order. Fennel, actually, stands for the contrary proposition; it recognized that "adjudicatory
and dispositional orders, combined, result in a final appealable order." Id. at fn. 5.
Nevertheless, in Fennel, the appellate court reviewed error that occurred in the
adjudicatory hearing subsequent to the permanent custody determination because the
clerk of courts failed to serve the judgment reflecting the adjudication and disposition on
the appellant and note the service on the docket. Due to the clerk's failure to comply with
Civ.R. 58(B), the 30-day period for the appeal never commenced, thus rendering the
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 7
appellant's appeal of the adjudicatory and dispositional judgment timely. No such situation
exists here.
{¶ 22} In sum, we conclude that we lack jurisdiction to review mother's first
assignment of error because she did not timely appeal the February 21, 2017 judgment. We
thus overrule that assignment of error.
{¶ 23} By her second assignment of error, mother argues that the trial court erred in
its consideration of the R.C. 2151.414(D)(1)(d) best interest factor. We disagree.
{¶ 24} The juvenile court may grant permanent custody of a child to a public
children services agency "if the court determines * * *, by clear and convincing evidence,
that it is in the best interest of the child to grant permanent custody of the child to the
agency * * * and that any of the following apply:"
(a) * * * [T]he child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with
the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child
who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-
two-month period * * *.
(e) The child or another child in the custody of the parent or
parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or another
state.
R.C. 2151.414(B)(1)(a) through (e).
{¶ 25} Once the juvenile court decides that one of the circumstances in R.C.
2151.414(B)(1) applies, the court turns to R.C. 2151.414(D) to decide if a grant of permanent
custody is in the child's best interest. Pursuant to R.C. 2151.414(D)(1), in determining a
child's best interest, the juvenile court "shall consider all relevant factors, including, but not
limited to, the following:"
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 8
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child
or through the child's guardian ad litem, with due regard for
the maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e).
{¶ 26} Here, the trial court found that the children met the criteria of R.C.
2151.414(B)(1)(d), as they had been in FCCS' temporary custody for 12 months of a
consecutive 22-month period. After consideration of the R.C. 2151.414(D)(1) factors, the
trial court concluded that granting FCCS permanent custody of E.C. and D.C., Jr. was in the
children's best interests. On appeal, mother challenges the trial court's consideration of the
R.C. 2151.414(D)(1)(d) best interest factor, and she specifically attacks the trial court's
conclusion that a legally secure permanent placement could not be achieved for E.C. and
D.C., Jr. by placing the children with the children's paternal grandmother ("grandmother").
{¶ 27} In analyzing the R.C. 2151.414(D)(1)(d) best interest factor, the trial court
considered potential placement of E.C. and D.C., Jr. with a relative, but concluded that no
such placement was appropriate. The trial court noted that FCCS rejected grandmother as
a potential placement because baby furniture that FCCS had purchased and delivered to
grandmother's house for E.C. had disappeared. FCCS had supplied the baby furniture in
an attempt to equip grandmother's house so E.C. could safely reside there. Mother argues
that the missing baby furniture did not provide a sufficient reason to reject grandmother as
a suitable candidate to assume custody of the children.
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 9
{¶ 28} In response to mother's argument, FCCS first asserts that mother lacks
standing to raise the argument. We are not persuaded. The possibility that a relative could
provide a permanent placement for a child by assuming legal custody is relevant to the
consideration of the R.C. 2151.414(D)(1)(d) best interest factor. The trial court's analysis of
the R.C. 2151.414(D)(1)(d) best interest factor, along with the other factors, determines
whether the court will grant permanent custody to an agency and terminate a parent's
rights. Consequently, a parent has standing to vindicate his or her rights by asserting that
the trial court erred during its best interest analysis by wrongly evaluating the possibility
that a relative could provide a legally secure permanent placement. In re J.P., 10th Dist.
No. 18AP-834, 2019-Ohio-1619, ¶ 27. Mother, therefore, has standing to assert her
argument.
{¶ 29} FCCS also argues that the trial court did not err in rejecting grandmother as
a permanent placement because she did not file a motion for legal custody of the children.
Unlike FCCS' first argument, this argument has merit. Once a child is adjudicated as
abused, neglected, or dependent, a juvenile court may award legal custody of the child to a
person who, pursuant to R.C. 2151.353(A)(3), has filed a motion requesting legal custody
or is identified as a proposed legal custodian in a complaint or motion filed by a party. In
re J.P. at ¶ 35. Here, grandmother did not move for legal custody of the children, and no
party identified her as a potential legal custodian in a complaint or motion. The trial court,
therefore, could not grant grandmother legal custody of the children. Because grandmother
could not assume legal custody of the children, she could not qualify as a legally secure
permanent placement for the children. Accordingly, we find no error in the trial court's
consideration of the R.C. 2151.414(D)(1)(d) best interest factor, and we overrule mother's
second assignment of error.
{¶ 30} Finally, we turn to father's sole assignment of error. Father assigns as error
the trial court's failure to find him an unfit parent prior to granting FCCS permanent
custody of E.C. and D.C., Jr. We disagree that the trial court erred as alleged.
{¶ 31} R.C. 2151.414(B)(1)(d), the authority under which the trial court granted
FCCS permanent custody of E.C. and D.C., Jr., does not require a finding of parental
unfitness prior to the termination of parental rights. In re W.A., 10th Dist. No. 06AP-485,
2006-Ohio-5750, ¶ 18; In re S.R., 10th Dist. No. 05AP-1356, 2006-Ohio-4983, ¶ 30; In re
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 10
S.W., 10th Dist. No. 05AP-1368, 2006-Ohio-2958, ¶ 27. The omission of a statutory
requirement to find parental unfitness does not deprive a parent of due process. In re C.R.,
7th Dist. No. 06 BE 53, 2007-Ohio-3179, ¶ 52; In re Bray, 10th Dist. No. 04AP-842, 2005-
Ohio-1540, ¶ 7. The parent's due process rights are protected because the trial court has
already implicitly determined that the parent is unfit by the time the court terminates the
parent's rights under R.C. 2151.414(B)(1)(d). In re C.R. at ¶ 52.
{¶ 32} In the case at bar, the first implicit finding of parental unfitness occurred at
the adjudicatory stage. In order to adjudicate a child dependent based on R.C. 2151.04(C),
a trial court must necessarily conclude that the parents' custody is detrimental to the child.
In re Trowbridge, 10th Dist. No. 03AP-405, 2004-Ohio-2645, ¶ 14; In re Gales, 10th Dist.
No. 03AP-445, 2003-Ohio-6309, ¶ 9. Thus, when a court determines a child is dependent
due to the child's poor condition or environment, the dependency adjudication implicitly
involves a finding of parental unsuitability. In re Trowbridge at ¶ 14; In re Gales at ¶ 9;
accord In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, paragraph two of the syllabus ("A
juvenile court adjudication of abuse, neglect, or dependency is a determination about the
care and condition of a child and implicitly involves a determination of the unsuitability of
the child's custodial and/or noncustodial parents."). Thus, here, when the trial court
adjudicated E.C. and D.C., Jr. as dependent children under R.C. 2151.04(C), it implicitly
found mother and father unfit parents.
{¶ 33} Second, parental unfitness is inherent in a trial court's finding of compliance
with the "12 out of 22" rule contained in R.C. 2151.414(B)(1)(d). In re W.A. at ¶ 18; In re
S.R. at ¶ 31; In re S.W. at ¶ 28. If a public children services agency assumes temporary
custody of a child for at least 12 of the prior 22 months, the parents of the child are likely
unable to demonstrate that they are able, suitable, or fit to care for the child. In re Bray at
¶ 8, quoting In re Workman, 4th Dist. No. 02CA574, 2003-Ohio-2220, ¶ 39. Consequently,
R.C. 2151.414(B)(1)(d) implicitly establishes that a parent who cannot reunify with the child
within the 12-month period is unable, unsuitable, or unfit to care for the child. Id. Thus,
in this case, when the trial court found that E.C. and D.C., Jr. both remained in FCCS'
temporary custody for at least 12 months, the trial court in effect determined that mother
and father were unfit parents.
Nos. 18AP-878, 18AP-882, 18AP-902 and 18AP-907 11
{¶ 34} Father does not contest that he was either jailed or imprisoned during the
majority of the period between E.C.'s birth on April 26, 2015 and the permanent custody
hearing on September 13, 2018. Obviously, an incarcerated parent is unable to care for
children. While father now professes himself rehabilitated and fit to parent his children,
his prior actions have resulted in circumstances that rendered him unfit to parent during
much of his children's lives. " '[T]he natural rights of a parent are not absolute, but are
always subject to the ultimate welfare of the child, which is the polestar or controlling
principle to be observed.' " In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 20, quoting In
re Cunningham, 59 Ohio St.2d 100, 106 (1979). Here, the ultimate welfare of the children
must prevail over father's plea for more time to demonstrate his fitness to raise his children.
We thus find no error in the trial court's conclusion that a grant of permanent custody to
FCCS is in the children's best interests. Accordingly, we overrule father's sole assignment
of error.
{¶ 35} For the forgoing reasons, we overrule mother's two assignments of error, and
father's sole assignment of error. We affirm the judgments of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgments affirmed.
BROWN and NELSON, JJ., concur.