[Cite as In re the Matter of T.A.H., 2015-Ohio-3997.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                                JUDGES:
IN THE MATTER OF: T.A.H.                                :       Hon. W. Scott Gwin, P.J.
                                                        :       Hon. Patricia A. Delaney, J.
                                                        :       Hon. Craig R. Baldwin, J.
                                                        :
                                                        :
                                                        :       Case No. 15CA21
                                                        :
                                                        :
                                                        :       OPINION




CHARACTER OF PROCEEDING:                                    Civil appeal from the Richland County Court
                                                            of Common Pleas, Juvenile Division, Case
                                                            No. 2012-DEP-00156


JUDGMENT:                                                   Dismissed

DATE OF JUDGMENT ENTRY:                                     September 25, 2015

APPEARANCES:

For Father                                                  For RCCS

JAMES L. BLUNT, II.                                         EDITH A. GILLILAND
3954 Industrial Parkway Drive                               RCCS
Shelby, OH 44875                                            731 Scholl Road
                                                            Mansfield, OH 44907

For Appellee                                                For Child
JEFFREY STIFFLER                                            M. LORE WHITNEY

                                                            GUARDIAN AD LITEM
                                                            DALE M. MUSILLI
Richland County, Case No. 15CA21                                                          2

Gwin, P.J.

       {¶1}    Appellant Richland County Children Services Board ["RCCSB"] appeals

from the March 11, 2015 decision of the Richland County Court of Common Pleas,

Juvenile Division Court’s decision denying its motion to modify temporary custody of

child T.A.H. to permanent custody and ordering that temporary custody continue.

                                    Facts and Procedural History

       {¶2}    The minor child, T.A.H. came into agency custody via emergency shelter care

on November 9, 2012, one week after her premature birth on November 2, 2012.

       {¶3}    On December 20, 2012, both parents appeared in court and admitted to

facts and circumstances resulting in the child being adjudicated a dependent child. The

Magistrate filed her decision on disposition on March 19, 2013, finding that the child

could not be placed with either parent, even with a protective supervision order and

granted temporary custody to RCCSB.

       {¶4}    The permanent custody trial was heard over four days of trial. At the

conclusion of trial, the trial court made the following observations.

       {¶5}    The child has been out of the parents' custody and care for essentially the

entire life of the child. Notwithstanding said extended out-of-home placement into a

foster-to-adopt    home,    the   child's   parents    regularly exercised   their parenting

time/visitation with the child to the extent that the case plan and any amendments

thereto permitted. Originally the parenting time/visitation consisted of three two-hour

visits per week, two at the RCCSB agency premises and one in the Flout home, all

supervised by authorized agency adults. Currently, the parenting time/visitation consists
Richland County, Case No. 15CA21                                                             3


of two five-hour visits each week, both times at the [parents] home, supervised formally

or informally.

       {¶6}      Throughout the more than two years of the child's out-of-home placement

the child's parents continued to make progress on their case plans, while the child's

health continued to improve. RCCSB expressly recognized these gains of the parents

by twice expressly affirming the same in its request for extensions of the temporary

custody orders; and by extending parenting time opportunities, albeit under supervised

visitation.

       {¶7}      The child's health has progressively improved over the pendency of this

case. Over time, the parents have also demonstrated increased progress in their skills

and abilities to adequately care for the child.

       {¶8}      After hearing the evidence, the trial court found that RCCSB had failed to

establish, by clear and convincing evidence, that it was in the best interest of the minor

child that permanent custody be granted. In addition, the Court also indicated that if it

would grant RCCB's motion, it would violate the parent's Due Process rights. The trial

court found,

                 This "risk of erroneous deprivation" of the [parents']' constitutionally-

       protected interest arises, under the unique facts of this case, by reason of

       RCCSB wanting the Court to terminate the [parents'] parental rights at the

       end of the two-year period specified under O.R.C. 2151.415, instead of

       affording the [parents] additional time within which to demonstrate that

       they have sufficient means, skill, ability, and commitment to care for their

       child. Again; through no fault of their own, in following RCCSB's case plan
Richland County, Case No. 15CA21                                                      4


      the [parents] were simply not afforded sufficient time and opportunity to

      determine if they could reach a threshold of responsible and appropriate

      care as to permit the child to return home, In light of the enormous "risk of

      erroneous deprivation" of the constitutionally-protected interest herein,

      occasioned by the limitations of the case plan and Ohio law as applied to

      the unique facts of this case, fundamental fairness demands that the

      [parents] be afforded additional time, services, and opportunity to

      demonstrate their parental fitness to care for their child.

      {¶9}   The trial court found the element of "12/22" months has been stipulated by

the parties and meets the legal requirements of R.C. 2151 A14 (B)(1)(d).

      {¶10} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(1) factor

by clear and convincing evidence as a reason not to return the child home.

      {¶11} The trial court found RCCSB failed to prove the R.C. 2151.414(E)(4) factor

by clear and convincing evidence as a reason not to return the child home.

      {¶12} The trial court found that each parent demonstrated adequate parental

commitment to the child "when able to do so." The court further noted,

             The child's health has progressively improved over the past twenty-

      seven months. Over this same period of time the [parents] have also

      demonstrated increased progress in their skills and abilities to adequately

      care for the child, However, notwithstanding the improved health of the

      child and the improved child-caring skills/abilities of the parents, the

      [parents] have been prevented by the case plan from having the

      opportunity to demonstrate their child-caring skills and abilities over more
Richland County, Case No. 15CA21                                                        5


      frequent and longer periods of time, and this, too, through no fault of these

      parents. It is this Court's concerted opinion that to terminate the parental

      rights of the [parents] at this time, under the unique facts of this case,

      would deny them of a fair and reasonable opportunity to ameliorate the

      conditions which led to the child's removal and continued out-of-home

      placement and, as such, would constitute a violation of the due process

      clause of the Fourteenth Amendment of the U.S. Constitution and Article

      1, Section 16 of the Ohio Constitution.

             Notwithstanding the Court's finding above, the limitations of the

      case plan as noted above do not ipso facto translate into a failure of

      RCCSB to have met the "reasonable efforts" requirement of O.R.C.

      §2151.419. The Court is simply opining that, under the unique facts of this

      case, the two-year limitation of O.R.C. §2151.415(D)(4) has not afforded

      the [parents] sufficient time within which to demonstrate their capability to

      care for their improving child; that to grant termination of parental rights at

      this time would fail to meet the fairness threshold of the due process

      clause of the Fourteenth Amendment.

                                  Assignments of Error

      {¶13} RCCSB raises four assignments of error,

      {¶14} "I.    THE   TRIAL    COURT'S       RULING     CONTINUING       TEMPORARY

CUSTODY WITH THE AGENCY WAS THE RESULT OF A MISAPPLICATION OF THE

STATUTORY         FACTORS    REQUIRED TO          BE   EXAMINED       IN   RC.    2151.414
Richland County, Case No. 15CA21                                                                        6


RESULTING IN A RULING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND AN ABUSE OF DISCRETION.

      {¶15} "II. THE TRIAL COURT'S CONCLUSION FINDING REASONABLE

EFFORTS WERE MADE, YET HOLDING THOSE EFFORTS AND THE CASE PLAN

VIOLATED PARENT'S CONSTITUTIONAL DUE PROCESS RIGHTS IS MISPLACED,

CONTRADICTORY AND NOT SUPPORTED BY RELEVANT AUTHORITY; THUS

RESULTING IN AN ABUSE OF DISCRETION.

      {¶16} "III.       THE     TRIAL      COURT'S         FAILURE       TO     ISSUE       A    LEGALLY

PERMISSIBLE          DISPOSITIONAL            ORDER        AT     THE      CONCLUSION            OF   THE

STATUTORY "SUNSET" TIME LIMIT RESULTS IN TERMINATION OF TEMPORARY

CUSTODY BY OPERATION OF LAW AND CONSTITUTES AN ABUSE OF

DISCRETION.

      {¶17} "IV. TRIAL COURT'S FAILURE TO PERMIT THE MAGISTRATE WHO

HANDLED CASE TO                  HEAR THE PERMANENT                      CUSTODY TRIAL, WHEN

MAGISTRATE WAS AVAILABLE WITHIN THE WEEK WAS ERROR PURSUANT TO

JUV. R. 34(B)(1) AND R.C. 2151.35(13)(2)(A)."

      A. Jurisdiction of Court of Appeals

      {¶18} Before reaching the merits of the appeal, we must address the threshold

issue of whether the judgment appealed is a final, appealable order. Appellees1 have

raised an issue that the appeal herein is premature. We agree.

      {¶19} Even if a party does not raise the issue, this court must address, sua

sponte, whether there is a final appealable order ripe for review. State ex rel. White vs.



      1   Father has filed a motion to dismiss; mother raises the issue in her brief on the merits.
Richland County, Case No. 15CA21                                                             7

Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

Thus, we shall first consider whether this court has jurisdiction over appellant's appeal.

       {¶20} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs.

Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v.

Conrad, 12th Dist. Warren No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be

final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable,

Civ. R. 54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999);

Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d

282(9th Dist.). If an order is not final and appealable, an appellate court has no

jurisdiction to review the matter and it must be dismissed.

       {¶21} In In re Adams, 115 Ohio St.3d 86, 2007–Ohio–4840, 873 N.E.2d 886, a

trial court denied a children-services agency’s motion to modify an order granting it

temporary custody to an order of permanent custody. The agency then appealed and

the appellate court dismissed the agency’s appeal of the denial for lack of a final,

appealable order. The Ohio Supreme court affirmed. The Ohio Supreme Court held that

a children services agency did not have a substantial right in the permanent custody of

children based on the fact that the agency had temporary custody of children. The Ohio

Supreme Court further held, in relevant part, as follows: “A trial court order denying the

motion of a children-services agency to modify temporary custody to permanent custody

and continuing temporary custody is not a final, appealable order under R.C.
Richland County, Case No. 15CA21                                                        8


2505.02(B)(1) or (2).” Id. at ¶ 35. The court in such case noted, “The continuation of the

agency’s temporary custody does not determine the outcome of the action for neglect

and dependency. Instead, all parties remain subject to further court order during the

temporary-custody phase. A juvenile court has several ultimate dispositional options

pursuant to R.C. 2151.415(A), and ordering the continuation of temporary custody does

not preclude the juvenile court from exercising any of these options.” Id. Accord,

Richland Cty. Children Services Board v. Adam, 5th Dist. Richland No. 2011CA0071,

2012-Ohio-2596.

      {¶22} RCCSB further argues that the trial court’s extension of temporary custody

beyond the limitations of R.C. 2151.415(D)(4) renders the juvenile court’s denial of its

permanent custody motion a final appealable order. We disagree. In re D.J. 8th Dist.

Cuyahoga No. 101180, 2014-Ohio-2778, ¶4.

      {¶23} A parent “is not entitled to immediate custody of [the child] because of the

sunset provision contained in R.C. 2151.353(F).” Holloway v. Clermont County Dept. of

Human Servs., 80 Ohio St.3d 128, 130, 684 N.E.2d 1217 (1997). The Supreme Court of

Ohio has held that temporary custody is terminated upon the passing of this “sunset

date” when no motion pursuant to R.C. 2151.415(A) is filed. In re Young Children, 76

Ohio St.3d 632, 637, 669 N.E.2d 1140 (1996). The passing of that date does not,

however, divest the juvenile court of jurisdiction. Id. In such a case, the juvenile court

must determine whether the problems that led to the original grant of temporary custody

had been resolved or sufficiently mitigated as of the sunset date when the temporary

custody order would have otherwise terminated. If these problems have been resolved

or mitigated, the court should terminate the temporary custody order and release the
Richland County, Case No. 15CA21                                                        9


children to their mother. Id. at 639, 669 N.E.2d 1140. If not, and if it is in the best

interest of the children to remain in such custody, the case may continue. In re A.W., 4th

Dist. No. 07CA14, 2008–Ohio–718, ¶ 8. Accord, State ex rel. Mowen v. Mowen, 119

Ohio St.3d 462, 2008-Ohio-4759, 895 N.E.2d 163, ¶¶ 14-15; State ex rel. Tucker v.

Grendell, 11th Dist. Geauga No. 2012-G-3125, 2013-Ohio-539, ¶¶11-12; In re J.W.,

10th Dist. Franklin No. 07AP-791, 2008-Ohio-1423, ¶8; In re M.B., 9th Dist. Summit No.

22103, 2004-Ohio-5686, ¶47; In re N.B., 8th Dist. Cuyahoga No. 81392, 2003-Ohio-

3656, ¶¶11-13; In re McCallum, 5th Dist. Tuscarawas No. 2006AP070042, 2007-Ohio-

995, ¶12; In re C.J.L., 4th Dist. Scioto No. 13CA3545, 2014-Ohio-1766, ¶22.

      {¶24} In accordance with all of the foregoing, the order denying the motion of

RCCSB to modify temporary custody to permanent custody and continuing temporary

custody is not a final, appealable order under R.C. 2505.02(B)(1) or (2).

      {¶25} Appeal dismissed.


By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
