In re J.B.

[Cite as In re J.B., 2022-Ohio-946.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.B. :
: No. 110516
A Minor Child :
:
[Appeal by Cuyahoga County Division :
of Children and Family Services] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-17-901225
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellant.
LISA B. FORBES, J.:
Appellant, the Cuyahoga County Division of Children and Family
Services (“CCDCFS”), appeals the juvenile court’s journal entry ordering the prior
award of planned permanent living arrangement (“PPLA”) to remain in effect for
J.B. after he was committed to the custody of the Ohio Department of Youth Services
(“ODYS”). After reviewing the law and the pertinent facts of the case, we affirm.
I. Facts and Procedural History
J.B. was committed to the emergency temporary custody of CCDCFS
on April 19, 2017, and on April 27, 2017, the juvenile court adjudicated J.B.
neglected. The juvenile court returned J.B. to the legal custody of his mother on
October 30, 2017, with an order of CCDCFS protective supervision; however, on July
25, 2018, temporary custody was again awarded to CCDCFS. On July 9, 2020, the
juvenile court committed J.B. to “the Planned Permanent Living Arrangement of
Cuyahoga County Division of Children and Family Services” and “terminated” the
earlier order of temporary custody (the “July 9, 2020 order”). The court concluded
that “the permanency plan for the child is: Planned Permanent Living
Arrangement.”
In a separate case, while under CCDCFS’s PPLA, J.B. was adjudicated
delinquent on March 26, 2021, for felonious assault with a firearm specification,
discharge of a firearm on or near prohibited premises, and criminal damaging or
endangering. As a result, J.B. was committed to the legal custody of ODYS for an
indefinite term consisting of “a minimum of two (2) years up to a maximum term
of [J.B.’s] twenty first (21) birthday.” In that order, the juvenile court noted that
J.B. was “a permanent planned living arrangement ward” of CCDCFS and
committed him to the legal custody of ODYS.
CCDCFS filed a “Notice of Termination of PPLA due to ODYS
Commitment” with the juvenile court on April 2, 2021, claiming that its PPLA and
legal custody of J.B. terminated by operation of law upon J.B.’s commitment to
ODYS. The juvenile court held a hearing on that notice, despite no hearing being
requested, on April 26, 2021. At the hearing, the court heard from CCDCFS, the
lawyer for J.B.’s mother, and J.B.’s guardian ad litem (“GAL”).
In a journal entry on May 4, 2021, the juvenile court found that
CCDCFS’s notice was “not well taken” and that the “Court’s prior order of PPLA shall
remain in effect.” It is from this entry that CCDCFS appeals.
II. Law and Analysis
“Where the argument addresses an issue of law, such as whether the
judgment is contrary to law or the court made an error of law, this court reviews that
decision de novo, or without deference to the trial court's decision.” Gateway
Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga
No. 104014, 2017-Ohio-1443, ¶ 12.
CCDCFS raises one assignment of error, arguing that “the trial court
order continuing in effect the custodial order of [PPLA] for [J.B.] is contrary to law.”
Specifically, CCDCFS argues that the trial court erred in continuing its PPLA and
legal custody of J.B. because “ODYS and CCDCFS cannot have a concurrent right to
make the decisions contemplated by the statutes defining legal custody, and
therefore it is irreconcilable for both ODYS and CCDCFS to be concurrent legal
custodians” of J.B. In support of its assertion, CCDCFS points to an array of statutes
and administrative code sections, including R.C. 2151.011(B)(21) and 5139.01(A)(3),
which delineate duties of CCDCFS and ODYS when the agencies are granted legal
custody of a minor. CCDCFS argues “it should be self-evident that an order
maintaining the child in the custody of CCDCFS despite the fact that the child has
been committed to the custody of ODYS is contrary to law.” CCDCFS maintains that
its use of a “Notice of Termination” is appropriate, and that “no motion was
required” to terminate the July 9, 2020 order.
It is notable that CCDCFS filed a “Notice” — to which no opposition
would be anticipated — to raise the issue of whether CCDCFS had any continuing
obligations to J.B. after his commitment to ODYS. J.B.’s GAL explained his position
on CCDCFS’s notice at the hearing, asserting “I do believe * * * that [CCDCFS]
should have petitioned this Court through a motion to terminate custody and not
a notice.” CCDCFS asserts that there is an “irreconcilable conflict” between its
duties under statute and the duties of ODYS without considering whether, under
this particular permanency plan, any of CCDCFS’s duties could, in fact, be
accomplished notwithstanding the commitment to ODYS. At the hearing, J.B.’s
GAL raised that very issue explaining the J.B.’s current social worker “has a pretty
good grasp on what [J.B’s] needs are going to be in the event that he is released
* * *. So it doesn’t make much sense to me * * * [to] terminate one thing and then
you start it all over again with someone else” when J.B. is released from ODYS. It
is significant that J.B. is only in this situation because he was adjudicated neglected
by his biological parents. In these truncated proceedings, neither J.B.’s mother nor
J.B.’s guardian ad litem provided any written response to the “Notice,” and there
was no indication that they were in agreement. While CCDCFS presented what it
felt was in the best interest of CCDCFS, J.B.’s GAL felt as though it would be in J.B.’s
best interest “for [CCDCFS] to stand in the shoes as [J.B.’s] guardian in the
community” while in ODYS custody because he was in a PPLA prior to being
committed to ODYS.
This case is distinguishable from the recent decision in In re K.M.P.,
in which this court vacated a judgment granting emergency temporary custody of a
child to CCDCFS contemporaneously with that child’s commitment to ODYS. In re
K.M.P., 8th Dist. Cuyahoga No. 110569, 2022-Ohio-466, ¶ 1. There, at issue was
emergency temporary custody of the child. Here, a permanency plan — not
temporary custody — was in place for J.B. at the time of his delinquency
proceedings. Whether a commitment to ODYS terminates or is wholly inconsistent
with a prior planned permanent living arrangement order was not at issue in In re
K.M.P.
Without reaching a conclusion on the merits of CCDCFS’s sole
assignment of error, we find that CCDCFS fails to demonstrate that a notice of
termination is the proper vehicle for terminating the juvenile court’s July 9, 2020
order. CCDCFS has failed to provide any caselaw, or statutory or other legal
authority supporting its position that a notice, rather than a motion, is appropriate
to bring this important issue before the court.
Based on the foregoing, CCDCFS’s sole assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
LISA B. FORBES, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MICHELLE J. SHEEHAN, P.J., DISSENTS (WITH SEPARATE OPINION)
MICHELLE J. SHEEHAN, J., DISSENTING:
I respectfully dissent. I believe we are obligated to follow this court’s
recent precedent in In re K.M.P., 8th Dist. Cuyahoga No. 110569, 2022-Ohio-466,
and reverse the juvenile court’s decision. The decision allowing the prior PPLA
order to remain in place effectively committed the legal custody of the child to both
CCDCFS and ODYS. In my view, affirming the juvenile court’s decision in this case
is inconsistent with the holding of K.M.P. that the juvenile court does not have the
statutory authority to commit a child to the legal custody of both CCDCFS and ODYS
simultaneously. Id. at ¶ 10.
Pursuant to R.C. 2151.353(A)(5), CCDCFS is granted the legal
custody of a minor under a PPLA order. Pursuant to R.C. 2151.011(B)(21), as the
legal custodian, CCDCFS has the right “to have the 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.”
The statutory rights and duties prescribed for CCDCFS as the
child’s legal custodian overlap significantly with the rights and duties given to ODYS
as the legal custodian of the child. R.C. 5139.01(A)(3) provides that, as the legal
custodian of the child, ODYS
has the following rights and responsibilities: the right to have physical
possession of the child; the right and duty to train, protect, and control
the child; the responsibility to provide the child with food, clothing,
shelter, education, and medical care; and the right to determine where
and with whom the child shall live
subject to any residual parental rights and responsibilities and the minimum periods
of statutorily prescribed institutional care.
In K.M.P., this court concluded that, pursuant to these statutory
provisions, the juvenile court does not have the statutory authority to commit a
juvenile to the legal custody of both CCDCFS and ODYS simultaneously. Id. at ¶ 10.
While K.M.P. involved a grant of temporary custody to CCDCFS and this case
involves an order of PPLA, CCDCFS has legal custody of the child under both orders.
See R.C. 2151.011(B)(55) (“‘temporary custody’ means legal custody of a child who
is removed from the child’s home”) and R.C. 2151.011(B)(38) (under a PPLA order,
the court “gives legal custody of a child to a public children services agency or a
private child placing agency without the termination of parental rights”).
The majority declines to reach the merits of the legal issue presented
by CCDCFS on the ground that it filed a notice to terminate the PPLA order instead
of a motion requesting the termination. While the best practice may be for the
agency to file a motion rather than a notice, the juvenile court here conducted an
extensive hearing on the agency’s notice, where both the child’s GAL and counsel for
the child’s mother appeared and were heard on the issue of whether the PPLA order
should be terminated.1 More importantly, the juvenile court’s decision finding the
notice “not well-taken” has the same legal effect of committing J.B. to the legal
custody of both CCDCFS and ODYS, a result inconsistent with K.M.P. For these
reasons, I respectfully dissent.
1 The transcript of the hearing reflects that the parties discussed at length ODYS’s
statutory obligations to investigate an appropriate caregiver if the child is released prior
to reaching the age of majority. A caregiver could include, among others, parents,
relatives or CCDCFS, if appropriate. The record, however, indicates that J.B. will likely
reach the age of majority prior to his release from ODYS.