Opinion
C.A. 30487 30488
07-19-2023
IN RE: E.H. E.B.
JASON D. WALLACE, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Proseucting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee. HOLLY FARRAH, Guardian ad Litem.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 20 10 0662 DN 20 10 0664
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Proseucting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
HOLLY FARRAH, Guardian ad Litem.
DECISION AND JOURNAL ENTRY
JILL FLAGG LANZINGER JUDGE.
{¶1} Mother appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights and awarded permanent custody of two of her children to Summit County Children Services Board ("CSB" or "the agency"). This Court affirms.
I.
{¶2} Mother is the biological mother of E.B., born March 30, 2017, and E.H., born February 6, 2020. She is also the mother of KB. and Q.B., twins born February 3, 2018, who are not parties to this case but whose circumstances are relevant. M.R. is the biological father of E.H., but paternity was never established for the other three children. No fathers or alleged fathers participated in the proceedings below or on appeal.
{¶3} Mother had a history with CSB based on allegations of physical abuse of her children when the agency filed complaints in late 2020, alleging that the four children were abused, neglected, and dependent. CSB removed the children from Mother's home, placing E.B. and E.H. together in a foster home and placing the twins together elsewhere. Prior to the adjudicatory hearing, the agency attempted to serve E.B.'s alleged father "John Doe" by posting, which also required mailing the summons and complaint to the parent's last known address. As CSB had averred that John Doe's address was unknown, the juvenile clerk did not note a certificate of mailing on the docket.
{¶4} After hearings before a magistrate, the juvenile court adjudicated E.B. abused and dependent, adjudicated E.H. dependent, placed the children in the temporary custody of CSB, and adopted the agency's proposed case plan as an order. Mother did not file objections to those decisions.
{¶5} Mother's original case plan objectives required her to obtain and maintain an income source adequate to provide food, housing, and other basic needs for the children; and to submit to a psychological, parenting, or mental health diagnostic assessment and follow all recommendations. Mother completed a timely parenting assessment which gave rise to diagnoses of borderline personality disorder and borderline intellectual functioning. The assessor questioned Mother's ability to parent her children independently or whether she would require a permanent support system. Based on those concerns, CSB immediately amended the case plan to address Mother's particular needs.
{¶6} The amended case plan reiterated Mother's basic needs objectives. It added two other high priority requirements for Mother, to wit, that she obtain a psychiatric evaluation to determine appropriate medication and treatment for her psychiatric symptoms and that she participate in "individual mental health counseling targeted to her level of comprehension." The agency identified multiple, very specific treatment goals of her mental health services. CSB set out four additional case plan objectives for Mother to address but only after she had developed the skills identified relevant to her three prioritized case plan objectives. Mother's supplemental requirements included (1) participating in an interactive and interventional parenting program with one-on-one instruction involving Mother and the children; (2) demonstrating the ability to meet the children's physical, medical, and emotional needs; building positive relationships with the children; and understanding child development milestones; (3) completing and passing an American Red Cross first aid and CPR class; and (4) attending all medical appointments for the children and taking an active role in their medical care and treatment. Those case plan objectives remained consistent for the next 18 months. At that point, CSB added one final requirement for Mother after she tested positive for methamphetamine use late in the case. Based on that drug use, the agency required Mother to complete a drug abuse assessment, follow all treatment recommendations, and submit to random drug screens.
{¶7} Mother did not appear at the next three review hearings. After each, the magistrate maintained the children in CSB's temporary custody and found that the agency had engaged in reasonable reunification efforts. Mother did not move to set aside any of those orders. At some point, the agency moved the children's placement from a foster home to the home of their maternal great aunt.
{¶8} Eleven months into the case, CSB moved for a first six-month extension of temporary custody based on some case plan compliance by Mother. Two weeks later, the agency moved to suspend Mother's visitations until she completed a psychiatric evaluation, complied with the doctor's recommendations, and began demonstrating positive behavior changes. Mother's aggression, screaming, and hyper vigilance in physically evaluating the children for signs of abuse increased with each visit, eventually leading to her arrest in the presence of the children.
CSB investigated and found no evidence to substantiate Mother's allegations of physical or sexual abuse of any of the children.
{¶9} Mother moved for a first six-month extension of temporary custody and shortly thereafter for legal custody. CSB withdrew its motion for an extension of temporary custody and instead moved for legal custody of E.B. and E.H. to the maternal great aunt. After hearings, the magistrate extended temporary custody and suspended Mother's visitation until she had engaged in psychiatric services to ameliorate her fears that people were physically and sexually abusing the children.
{¶10} The magistrate commenced a dispositional hearing on CSB's and Mother's competing motions for legal custody. Mid-hearing, however, CSB withdrew its motion for legal custody to the maternal great aunt because she was no longer willing to provide a permanent home for the children. Identifying no other less restrictive options, CSB moved for permanent custody of E.B. and E.H.
{¶11} Six weeks later, CSB filed a motion to dismiss the case involving E.B. Citing this Court's opinion in In re L.B., 9th Dist. Summit Nos. 30239 and 30240, 2022-Ohio-3122, the agency wished to dismiss the case, effective March 14, 2022 (the date the agency filed the motion), based on a "potential issue regarding perfection of service upon John Doe, who was served by posting and had no last known address." While not conceding defective service on the alleged father, CSB asserted that it would be refiling a complaint regarding E.B. "to avoid delaying permanency for the child[.]" The same day, the agency filed an amended motion to dismiss E.B.'s case, this time requesting an effective date of March 21, 2022.
{¶12} On March 15, 2022, the magistrate issued a decision dismissing E.B.'s case without prejudice. The juvenile court adopted that decision the same day and issued an order dismissing that child's case without prejudice. Neither the magistrate's decision nor the judge's order mentioned an effective date for the dismissal.
{¶13} Within hours, CSB filed a motion to vacate the "Dismissal Decision and accompanying Judgment Entry filed March 15, 2022, which dismissed the case [regarding E.B.] and terminated [the agency's] custody." The agency expressly requested vacation of the dismissal order it presumed was effective that day so that "[E.B.] would remain in [CSB's] custody until the correct dismissal order can be filed with an effective date of March 21, 2022." In support, the agency asserted that the caseworker was out of the office and not available to refile the complaint regarding E.B. until March 21. Later on March 15, 2022, the juvenile court issued a judgment vacating the dismissal entry and expressly maintaining E.B.'s case on its active docket.
{¶14} Because the agency's amended motion to dismiss E.B.'s case, with an effective date of March 21, 2022, was still pending, it moved to withdraw that motion. Although CSB did not assert any reason for wishing to withdraw its amended motion to dismiss, a later response by the agency clarified that dismissal of that child's case was not necessary based on this Court's March 16, 2022 opinion in In re X.H., 9th Dist. Summit Nos. 30115 and 30116, 2022-Ohio-779. The juvenile court "overruled" CSB's amended motion to dismiss "as withdrawn" by the agency.
{¶15} Six months later, Mother filed a motion to dismiss E.B.'s case, arguing that the juvenile court had improperly vacated the prior dismissal. Mother asserted that CSB could only obtain relief from a final judgment via a proper Civ.R. 60(B) motion. In the case where the dismissal arose out of a magistrate's decision, however, Mother asserted that CSB had to first file an objection to the decision and then appeal any unfavorable judgment.
{¶16} CSB filed a brief in opposition to Mother's motion to dismiss. The agency asserted that it realized that its dismissal for ineffective service of the summons and complaint on John Doe was no longer necessary because this Court had held in In re X.H., supra, that a mother lacks standing to challenge improper service of the complaint on John Doe. Finally, although it had not invoked Civ.R. 60(B) in its motion to vacate, the agency now argued that its motion was proper under Civ.R. 60(B) "to correct an effective date in the order that was issued." The agency did not mention a specific subsection of the rule, but argued "mistake," possibly relying on Civ.R. 60(B)(1). CSB did not address its failure to file an objection to the magistrate's decision that dismissed E.B.'s case.
CSB oversimplified this Court's holding in In re X.H. We did not foreclose consideration of one parent's challenge to the lack of service on the other parent. Rather, this Court held that "the appealing parent must demonstrate that she was actually prejudiced by the [lack of service on the other parent] before she may assert [the alleged error] on her own behalf; otherwise she lacks standing to raise the issue." (Internal quotations omitted; emphasis added.) Id. at ¶ 9, quoting In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024, ¶ 18.
{¶17} The matter proceeded to a final dispositional hearing before the judge. Pending were CSB's motion for permanent custody and Mother's alternative motions for legal custody to herself or maternal relatives. Prior to the presentation of any evidence, Mother reiterated that she had filed a motion to dismiss E.B.'s case, arguing that CSB's motion to vacate the dismissal was tantamount to a motion to reconsider a final judgment, rather than a proper motion to vacate pursuant to Civ.R. 60(B). The juvenile court orally overruled Mother's motion to dismiss without any explanation and heard evidence on the pending dispositional motions. Thereafter, the juvenile court issued a judgment terminating all parental rights and granting CSB's motion for permanent custody of both E.B. and E.H. As to Mother's motion to dismiss E.B.'s case, the trial court "overruled" it, writing only that "[t]he Court retained jurisdiction to vacte (sic) its March 15, 2022 Order dismissing this case when it did so on March 15, 2022."
{¶18} Mother filed a timely appeal, raising two assignments of error for review. After reviewing the appellate briefs, this Court ordered the parties to submit supplemental briefs relating to the finality of certain trial court orders. This Court now considers Mother's assignments of error out of order to facilitate our discussion.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN AND REVERSIBLE ERROR WHEN IT OVERRULED MOTHER'S MOTION TO DISMISS E.B.'S CASE.
{¶19} Mother argues that the juvenile court erred by denying her motion to dismiss E.B.'s case because it lacked jurisdiction to address CSB's motion for permanent custody as to that child. Specifically, Mother argues that the juvenile court had dismissed E.B.'s case and then improperly vacated its dismissal. This Court lacks jurisdiction to address Mother's argument.
{¶20} Both Mother and CSB argue in their supplemental briefs, and this Court agrees, that the juvenile court's March 15, 2022 judgment dismissing E.B.'s case was a final, appealable order. See In re L.B., 9th Dist. Summit Nos. 30239 and 30240, 2022-Ohio-3122, ¶ 8. R.C. 2505.02(B)(2) recognizes the finality of orders affecting a substantial right made in a special proceeding. Juvenile custody cases have long been recognized as special proceedings for purposes of R.C. 2505.02(B)(2). In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, ¶ 12, citing In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, ¶ 43. As a child's custody is an established substantial right, In re CM., 9th Dist. Summit No. 29242, 2019-Ohio-1877, ¶ 9, we conclude that both the child's and Mother's substantial rights were impacted by the dismissal of CSB's case.
{¶21} This Court further concludes that the juvenile court's March 15, 2022 judgment vacating its dismissal judgment from earlier that day was also a final, appealable order. An order that vacates a final judgment is itself a final, appealable order. R.C. 2505.02(B)(3). See also Murray v. Ace Painting of Akron, LLC, 9th Dist. Summit No. 29959, 2022-Ohio-1045, ¶ 8. If Mother wished to challenge the juvenile court's judgment vacating its prior dismissal of E.B.'s case, she had to file a timely appeal within 30 days of the entry of that judgment. She failed to do so. Instead, Mother waited six months to file a motion to dismiss E.B.'s case, arguing that the juvenile court erred in granting CSB's motion to vacate the earlier dismissal. Although captioned a motion to dismiss, Mother was effectively asking the juvenile court to reconsider its prior final judgment which vacated the dismissal. It is well settled that "'motions for reconsideration of a final judgment in the trial court are a nullity.'" DaimlerChrysler Fin. Servs. N. Am. v. Hursell, 9th Dist. Summit No. 24815, 2011-Ohio-571, ¶ 13, quoting Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379 (1981).
{¶22} As Mother did not timely appeal the juvenile court's March 15, 2022 judgment vacating the dismissal of E.B.'s case, she has failed to invoke this Court's jurisdiction to address her challenge. See Gatlin v. Harmon, 9th Dist. Lorain No. 19CA011597, 2021-Ohio-1852, ¶ 13, quoting BankUnited v. Klug, 9th Dist. Lorain No. 16CA010923, 2016-Ohio-5769, ¶ 12. Accordingly, Mother's challenge to the trial court's vacation of its prior dismissal order is not properly before us for consideration.
{¶23} This Court here clarifies that we take no position on the propriety of CSB's motion to vacate that the agency has argued comported with the requirements of a Civ.R. 60(B) motion for relief from judgment. Assuming without deciding that the juvenile court erred in granting CSB's motion to vacate because it was procedurally deficient, that error was immediately appealable. Because this Court lacks jurisdiction to address the substantive merits of Mother's untimely challenge, her second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN AND REVERSIBLE ERROR WHEN IT GRANTED PERMANENT CUSTODY TO [CSB] WITH A FINDING THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT [CSB] PROVIDED REASONABLE REUNIFICATION EFFORTS PURSUANT TO R.C. 2151.419.
{¶24} Mother argues that the juvenile court erred by granting CSB's motion for permanent custody because the agency failed to use reasonable reunification efforts. Specifically, Mother argues that the agency failed to facilitate services geared to her cognitive abilities in consideration of her special needs. This Court disagrees.
{¶25} R.C. 2151.419(A)(1) requires the juvenile court to determine whether the agency has used reasonable reunification efforts at any hearing at which the court removes a child from his home or continues the child's removal from his home. It is well settled that "the statute imposes no requirement for such a determination at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to that hearing." (Internal quotations omitted.) In re L.R., 9th Dist. Summit Nos. 29266 and 29271, 2019-Ohio-2305, ¶ 14, quoting In re A.C.-B., 9th Dist. Summit Nos. 28330 and 28349, 2017-Ohio-374, ¶ 22; see also In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41-43 (concluding that a reasonable efforts determination is necessary at a permanent custody hearing only if the agency has not demonstrated its use of reasonable efforts prior to that time).
{¶26} In this case, the juvenile court consistently made the requisite reasonable efforts findings. Mother failed to file objections or motions to set aside any of those reasonable efforts determinations. Accordingly, she has forfeited any challenge to CSB's use of reasonable efforts on appeal except for a claim of plain error. See In re B.H., 9th Dist. Summit Nos. 29998 and 29999, 2021-Ohio-4152, ¶ 23. Mother does not set out the plain error standard or make an argument in that regard. To demonstrate plain error, she would have to show both trial court error and resulting prejudice. Id., citing In re T.G., 9th Dist. Summit No. 29658, 2020-Ohio-4802, ¶ 22. However, as Mother has not provided this Court with the transcripts of any hearings after which the juvenile court found that CSB had used reasonable reunification efforts, we must presume regularity as to those determinations. See In re L.R, 9th Dist. Summit Nos. 29266 and 29271, 2019-Ohio-2305, ¶ 18.
{¶27} Mother cites our previous decision in In re H.S., 9th Dist. Summit Nos. 28944 and 28948, 2018-Ohio-3360, in support of her argument that reasonable reunification efforts as to a parent with cognitive delays must include services geared precisely to the parent's level of comprehension. Mother implies that anything less requires reversal to allow the parent additional time to engage in those types of services. The circumstances in In re H.S. are distinguishable from the instant case.
{¶28} In In re H.S., there was solid evidence of the parents' low cognitive functioning stemming from their developmental disabilities, with both CSB and the juvenile court recognizing that the parents required intensive hands-on, one-on-one parenting instruction to target their specific needs. Id. at ¶ 20. The juvenile court denied CSB's first motion for permanent custody because the agency had not used reasonable reunification efforts when it failed to provide the necessary intensive level of parenting education for the parents. Id. at ¶ 21. The trial court then expressly ordered the agency to give the parents the opportunity to engage in those services. Id. The juvenile court granted the agency's second permanent custody motion. This Court reversed because CSB had again not provided the required intensive level hands-on parenting education ordered by the juvenile court. Id. at ¶ 24.
{¶29} In this case, there were some concerns about Mother's level of comprehension, although it is unclear whether she lost focus because of low cognitive functioning or mental health issues. The only evidence regarding her cognitive abilities was that her full scale IQ score (adduced by an assessment at Summit Psychological Associates) placed her in the borderline intellectual functioning range. The social worker at Blick Clinic who performed Mother's diagnostic assessment testified that the borderline functioning range encompasses IQ scores of 70 to 100. She testified that that diagnosis is "not considered a substantial functional disability as far as mild, moderate, severe or profound mental retardation or intellectual disability." The social worker added that people who fall within that range "typically would still be able to function fairly well" and "marry, have families, work, [and] have typical lives with that level." Mother's specific IQ score is not part of the record.
{¶30} Once CSB received information that Mother might struggle with comprehension problems, the agency immediately amended the case plan for Mother to receive "individual mental health counseling targeted to her level of comprehension." In addition, given the interference by Mother's mental health issues on her ability to function, CSB prioritized mental health services for her. Until Mother could address those issues, she would be unable to focus on parenting issues. CSB created additional case plan objectives for Mother, including interactive/interventional parenting education with one-on-one instruction, first aid classes, and attendance at the children's medical appointments. Because Mother never engaged in mental health services designed to alleviate her extreme mental health issues, she remained unable to take advantage of the additional services CSB was willing and able to provide. This is not a case like In re H.S. where the agency failed to make available the very services necessary for the parents to attempt to cure the concerns underlying the children's removal. On the contrary, CSB provided Mother with the resources to address her most significant issue, i.e., her mental health, so that she could begin to address the other issues that prevented her from providing a safe and stable home environment for the children. That Mother did not take advantage of those services does not negate the agency's willingness and ability to provide them. Mother's first assignment of error is overruled.
III.
{¶31} Mother's 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.
SUTTON, P. J. CARR, J. CONCUR.