In re H.S.

[Cite as In re H.S., 2019-Ohio-4334.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

IN RE: H.S. C.A. No. 29401
Z.M.
I.M.
P.S.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN15-09-000611
DN15-09-000612
DN15-09-000613
DN16-11-000955

DECISION AND JOURNAL ENTRY

Dated: October 23, 2019

SCHAFER, Judge.

{¶1} Appellant Father appeals the judgment of the Summit County Court of Common

Pleas, Juvenile Division, that granted permanent custody of the children H.S., Z.M., I.M., and

P.S. to appellee Summit County Children Services Board (“CSB” or “the agency”), terminating

Father’s parental rights to his three biological children, and denying his motion for legal custody

of the fourth non-biological child. This Court reverses and remands.

I.

{¶2} Mother and Father live together but have never been married. They are the

biological parents of Z.M. (d.o.b. 10/22/13), I.M. (d.o.b. 4/28/15), and P.S. (d.o.b. 11/3/16).

Mother is also the biological mother of H.S. (d.o.b. 3/11/10). Except for one short visit with the

child, the father of H.S. has not had any contact with her during the child’s life. Father has been

the only father-figure H.S. has ever known.
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{¶3} Based on concerns regarding unsafe and unsanitary conditions and a lack of

supervision in the family’s home, CSB removed H.S., Z.M., and I.M. in September 2015. Those

children were adjudicated dependent and placed in the temporary custody of the agency. As the

parents’ home continued to present a risk to the safety of the children, CSB removed P.S.

immediately upon her birth. That child too was adjudicated dependent and placed in the

temporary custody of the agency.

{¶4} CSB moved for permanent custody. The juvenile court denied the motion and

granted a six-month extension of temporary custody to allow Mother and Father additional time

to follow the recommendations of their recent parenting evaluations. Specifically, the juvenile

court ordered CSB to facilitate intensive parenting classes for Mother and Father through Fast

Track at which the children would also be present. Approximately five months later, CSB filed

its second motion for permanent custody. The juvenile court granted the motion and terminated

Mother’s and Father’s parental rights. Both parents appealed from that judgment.

{¶5} Upon review of Mother’s and Father’s appellate briefs, this Court directed the

parties to brief a supplemental issue regarding “whether the parents received reasonable

reunification efforts, as set forth in the case plan and orders of the trial court, pertaining to their

cognitive delays and their need for hands-on intensive parenting education.” In re H.S., 9th Dist.

Summit Nos. 28944 and 28948, 2018-Ohio-3360, ¶ 11. Because CSB did not ensure that Mother

and Father had the services of an instructor who could meet with and instruct them during their

visitations with the children, this Court concluded that “CSB failed to provide reasonable, court-

ordered reunification services in this case.” Id. at ¶ 24. Accordingly, we reversed and remanded

the matter for further proceedings before the juvenile court. Id. at ¶ 26.
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{¶6} Upon remand, the juvenile court scheduled a status hearing. In the interim, CSB

filed a new “original” case plan in which it established a reunification goal for the children and

case plan objectives for Mother and Father. The parents’ case plan objectives included

completing a parenting program, following all recommendations, and demonstrating what they

learned during interactions with the children; attending mental health counseling based on their

prior diagnoses, obtaining psychiatric evaluations, and following all recommendations; and

maintaining a safe, stable, and clean home with working utilities, and demonstrating the financial

ability to meet the basic needs of the children. At the status hearing, all parties agreed that

additional time was necessary to let the parties address the issues this Court identified in our

opinion. The juvenile court scheduled a final dispositional hearing to begin approximately five

months later.

{¶7} CSB filed its third motion for permanent custody. Father filed a motion for legal

custody of H.S., the child who has no biological connection to him. Although the record does

not contain other written dispositional motions, Father’s and Mother’s individual pretrial

statements stated that they also had pending motions for legal custody of all their biological

children. The matter proceeded to a hearing on the motions.

{¶8} At the conclusion of the dispositional hearing, the juvenile court denied the

parents’ respective motions for legal custody, granted CSB’s motion for permanent custody, and

terminated Mother’s and Father’s parental rights regarding the children. Father filed a timely

appeal in which he raises three assignments of error for consideration. This Court rearranges the

assignments of error to facilitate review.
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II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
CONTINUING THE CHILDREN IN THE TEMPORARY CUSTODY OF CSB
AFTER REVERSAL BY THE NINTH DISTRICT COURT OF APPEALS DUE
TO IT EXCEEDING TWO YEARS IN THE TEMPORARY CUSTODY OF
THE AGENCY AS ALLOWED UNDER R.C. 2151.415(D) HAD EXPIRED.
(Sic.)

{¶9} Father argues that the juvenile court lacked jurisdiction to render a final

disposition after remand because the children remained in the temporary custody of CSB beyond

the time limit allowed by R.C. 2151.415(D)(4). Father argues that the juvenile court, therefore,

was required to dismiss the cases. Father’s arguments are not well taken.

{¶10} This Court has previously rejected these arguments on multiple occasions. See,

e.g., In re T.H., 9th Dist. Summit No. 28833, 2018-Ohio-1143, ¶ 7-9; and In re K.T., 9th Dist.

Summit Nos. 28411, 28424, 28427, and 28440, 2017-Ohio-2638, ¶ 13-16.

{¶11} R.C. 2151.415(D)(4) prohibits the juvenile court from “grant[ing] an agency more

than two extensions of temporary custody” and “order[ing] an existing temporary custody order

to continue beyond two years after * * * the complaint was filed or the child was first placed into

shelter care * * *.” This Court has construed the plain language of the statute to require an

express order by the juvenile court extending or continuing temporary custody before error

exists. In re K.T. at ¶ 16. In this case, after this Court reversed the judgments awarding

permanent custody and remanded the matters for further proceedings, the juvenile court did not

issue any orders granting an extension or continuance of temporary custody. Instead, the trial

court merely conducted further proceedings to resolve the remaining issue in the cases,

specifically the custodial dispositions of the children.
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{¶12} Although the children remained in the temporary custody of CSB beyond two

years, we further recognize and rely on the Ohio Supreme Court’s holding that “‘[t]he passing of

the statutory time period (“sunset date”) pursuant to R.C. 2151.353(F) does not divest juvenile

courts of jurisdiction to enter dispositional orders.’” In re T.H. at ¶ 9, quoting In re Young

Children, 76 Ohio St.3d 632 (1996), syllabus. Even where a temporary custody order may have

expired, the juvenile court retains jurisdiction to resolve the issue of the children’s custodial

dispositions. In re T.H. at ¶ 9, citing In re Young Children at 639.

{¶13} This Court reversed the juvenile court’s award of permanent custody. We did not

grant the parents’ motions for legal custody. Accordingly, the children’s custodial dispositions

remained unresolved and the juvenile court retained jurisdiction to enter dispositional orders

beyond the sunset date of the cases. Father’s second assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT TERMINATED THE PARENTS’ RIGHTS AND PLACED THE
CHILDREN IN THE PERMANENT CUSTODY OF CSB WHEN THE
AGENCY DID NOT COMPLY WITH COURT ORDERS AND PROVIDE
REASONABLE REUNIFICATION EFFORTS.

{¶14} Father argues that the juvenile court lacked the authority to terminate parental

rights because CSB failed to use reasonable reunification efforts after this Court’s reversal and

remand regarding the prior permanent custody judgment. Father’s argument has merit.

{¶15} Before a juvenile court may terminate parental rights and award permanent

custody of a child to a proper moving agency, it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the

child or another child of the same parent has been adjudicated abused, neglected, or dependent
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three times; or that the child cannot be placed with either parent, based on an analysis under R.C.

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of

the child, based on an analysis under R.C. 2151.414(D)(1). See R.C. 2151.414(B)(1) and

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). In this case, the

juvenile court found as the sole first-prong ground for permanent custody that the children had

been in the temporary custody of CSB for at least 12 of the prior 22 months.

{¶16} We reiterate from the prior appeal:

[T]he authority of the juvenile court and the county children services agency in
abuse, dependency, and neglect cases is strictly governed by a comprehensive
statutory scheme set forth in R.C. Chapter 2151. In re S.R., 9th Dist. Summit No.
27209, 2014-Ohio-2749, ¶ 35, citing In re I.S., 9th Dist. Summit No. 24763,
2009-Ohio-6432, ¶ 10. Because termination of parental rights has been described
as the family law equivalent of the death penalty[,] the parents must be afforded
every procedural and substantive protection the law allows. In re Hayes, 79 Ohio
St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).
Among those procedural protections is the obligation of the agency to make
reasonable efforts to reunify the child[ren] with one or both parents. In re S.R. at
¶ 37, citing R.C. 2151.419.

(Alterations sic.) (Internal quotations omitted.) In re H.S., 2018-Ohio-3360, at ¶ 14.

{¶17} R.C. 2151.413(D)(3)(b) expressly prohibits the agency from moving for

permanent custody on the basis that a child has been in the agency’s temporary custody for 12 of

22 months if, when required to do so, the agency “has not provided the services required by the

case plan to the parents of the child or the child to ensure the safe return of the child to the

child’s home.” Accordingly, inherent in an agency’s “12 of 22” allegation is that it has engaged

in reasonable efforts towards reunification. Unless the agency has been relieved of its statutory

obligation to use reasonable efforts to facilitate reunification, it must demonstrate such efforts at

the permanent custody hearing, if it has not established that it made reasonable efforts prior to

the hearing on the motion. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 43.
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{¶18} In this case, there was no judicial determination relieving CSB of its statutory

obligation to make reasonable efforts to reunify the children with their parents. Accordingly, the

agency was required to demonstrate that it had developed and facilitated a plan to “‘account for

the respective abilities of the parents and children in pursuing individualized concerns, goals, and

steps necessary for reunification.’” In re H.S. at ¶ 18, quoting In re Leveck, 3d Dist. Hancock

Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 10.

{¶19} In reversing the juvenile court’s prior award of permanent custody, this Court

concluded that reasonable reunification efforts needed to focus on the parents’ limitations

stemming from their cognitive delays, specifically a “hands-on parenting education program that

enables the parents to role-model appropriate parenting behavior.” In re H.S. at ¶ 19. Although

CSB had referred the parents to a hands-on parenting education program which incorporated the

children as ordered by the juvenile court, the instructor’s schedule did not permit her to meet

with the parents at a time when the children were present. Id. at ¶ 23. Because “CSB made no

effort to resolve the scheduling conflict by adjusting the parents’ visitation schedule or

requesting a different instructor[,]” this Court concluded that the agency “failed to provide

reasonable, court-ordered reunification services[.]” Id. at ¶ 24.

{¶20} After remand, CSB again referred the parents to an appropriate hands-on

parenting program which included an academic component and the opportunity to apply lessons

to interactions with the children in the presence of the instructor. The program through Ohio

Guidestone was individualized to accommodate the parents’ cognitive limitations. The instructor

began working with Mother and Father during in-home visits with the children. After only two

sessions, however, CSB terminated the parents’ in-home visits and moved all future visitation to

the Family Interaction Center based on agency policy, because CSB had filed another motion for
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permanent custody. The Ohio Guidestone instructor was willing to continue working with the

parents and children together, but her schedule precluded her from attending visits at the time

scheduled by CSB. Although the Ohio Guidestone instructor continued to work with the parents

in their home, Mother and Father had no further opportunity to apply those lessons with the

children under the supervision and reinforcement of the instructor as required to accommodate

the parents’ special needs. Precisely as this Court concluded in the previous appeal, the evidence

again demonstrates that “CSB made no effort to resolve the scheduling conflict by adjusting the

parents’ visitation schedule or requesting a different instructor from [the service provider].” In

re H.S. at ¶ 24.

{¶21} The CSB caseworker testified that, when in-home visits began, both parents

showed improvement since working with the Ohio Guidestone instructor as evidenced by their

abilities to better predict issues and solve problems. Moreover, the caseworker testified that she

believed that the parents’ progress would have continued with more in-home visits and training.

She regretted that in-home visits had to cease based merely on agency policy because Mother

and Father had done nothing wrong during in-home visits to otherwise require their termination.

{¶22} CSB filed its most recent motion for permanent custody, thereby requiring the

cessation of in-home visits, exactly six months after this Court reversed the prior permanent

custody judgment in the belief that they were limited by law to that period of time to reengage in

reunification efforts. When discussing the parents’ demonstrated ability to safely parent the

children, the caseworker testified:

I think we were well on our way. I wish we would have had more time. I wish
that this [Ohio Guidestone] service would have been offered to the family in an
appropriate, timely fashion, but I can’t change that.
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The caseworker recognized that she could not attempt reunification if she could not observe the

parents “in real life” as opposed to the artificial environment of the visitation center.

Nevertheless, although she had linked the parents with the appropriate resources and the

evidence indicated that the parents needed more time to continue their progress, the caseworker

testified, “But my time is up. * * * I have no more time” pursuant to “statutory” law.

{¶23} This Court finds no authority for the legal proposition that, upon reversal and

remand after children have been the subjects of a dependency action for more than two years, the

juvenile court retains jurisdiction only for an additional six-month period. Although the juvenile

court is precluded from ordering an extension of temporary custody beyond two years after the

complaint was filed pursuant to R.C. 2151.415(D)(4), the trial court retains continuing

jurisdiction upon remand by operation of law. Upon remand, CSB’s self-imposed artificial six-

month deadline defeated the purpose of any reunification efforts. By prematurely filing its

motion for permanent custody, knowing that in-home visits must then stop, the agency created an

artificial barrier to reunification that it could not overcome. Hands-on parenting education

incorporating the children, which was deemed necessary by the juvenile court to accommodate

the needs of the parents with cognitive delays, has still not occurred. Reluctantly, despite the

length of time that these children have lacked permanency, this Court again concludes that

CSB’s failure to make reasonable efforts to attempt to reunify the children with the parents

requires reversal of the permanent custody judgment and remand to the juvenile court for further

proceedings.

{¶24} Based on the evidence presented at the permanent custody hearing, this is not a

hopeless case where the parents have demonstrated no ability to assimilate the knowledge and

skills necessary to safely parent the children. Both the CSB caseworker and Ohio Guidestone
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instructor testified that the parents were making progress and demonstrating an improved ability

to identify potential issues and engage in problem-solving. The opportunity for the juvenile

court to determine whether or not the parents can ultimately progress to the point of being able to

provide a safe and stable home environment for the children has not yet been presented based on

the lack of reasonable reunification efforts by CSB. Father’s first assignment of error is

sustained.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT GRANTED PERMANENT CUSTODY WITHOUT RETURNING
THE CHILDREN TO FATHER AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

{¶25} Father argues that the juvenile court’s award of permanent custody of the children

to CSB was against the manifest weight of the evidence. Based on this Court’s resolution of

Father’s first assignment of error, his third assignment of error is moot and we decline to address

it. See App.R. 12(A)(1)(c).

III.

{¶26} Father’s second assignment of error is overruled, his first assignment of error is

sustained, and this Court declines to address the third assignment of error. The judgment of the

Summit County Court of Common Pleas, Juvenile Division, is reversed and the cause remanded

for further proceedings consistent with this opinion.

Judgment reversed,
and cause remanded.

There were reasonable grounds for this appeal.
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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 Appellee Summit County Children Services Board.

JULIE A. SCHAFER
FOR THE COURT

CALLAHAN, P. J.
CARR, J.
CONCUR.

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.

DANIEL BACHE, Attorney at Law, for Mother.

JOSEPH KERNAN, Guardian ad Litem.