[Cite as In re K.T., 2016-Ohio-5812.]


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

IN RE: K.T.                                         C.A. Nos.     28152
       M.G.                                                       28169
       A.G.


                                                    APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
                                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
                                                    CASE Nos. DN 13-08-0520
                                                               DN 13-08-0521
                                                               DN 13-08-0522

                                 DECISION AND JOURNAL ENTRY

Dated: September 14, 2016



        WHITMORE, Judge.

        {¶1}     Appellants, Timothy G. and Patricia W., appeal from a judgment of the Summit

County Court of Common Pleas, Juvenile Division. This Court reverses and remands for further

proceedings.

                                               I.

        {¶2}     Taylor W. (“Mother”) is the biological mother of M.G., born January 4, 2009,

A.G., born October 6, 2011, and K.T., born August 13, 2013. Timothy G. (“Father G.”) is the

biological father of M.G. and A.G., the two oldest children. William T. (“Father T.”) is the

biological father of K.T., the youngest child.      Patricia W. (“Grandmother”), the maternal

grandmother of all three children, was permitted to intervene in the trial court proceedings.

Father G. and Grandmother have appealed from the judgment of the trial court. Mother and

Father T. have not appealed.
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        {¶3}    On August 21, 2013, CSB filed complaints in juvenile court, alleging that all three

children were dependent and seeking temporary custody. The complaints alleged concerns of

domestic violence by all three parents, alcohol abuse by Father T., and substance abuse by

Mother and Father T. On November 27, 2013, the children were adjudicated dependent and

placed in the temporary custody of CSB. The trial court adopted a case plan that addressed the

concerns cited in the complaints.

        {¶4}    CSB filed a motion for permanent custody of the children on July 8, 2014. In that

motion, the agency asserted that the children could not or should not be placed with either parent

within a reasonable time, referring to several factors under subsection R.C. 2151.414(E), and that

permanent custody is in the best interest of the children. See R.C. 2151.414(B)(1)(a) and R.C.

2151.414(D)(1). Following a pretrial hearing, that motion was overruled as withdrawn. On

March 10, 2015, CSB filed a new motion for permanent custody. In that motion, the agency

repeated the same allegations as earlier, but also added the assertion that the children had been in

the temporary custody of CSB for 12 or more months of a consecutive 22-month period. See

R.C. 2151.414(B)(1)(d).

        {¶5}    The matter proceeded to hearing. In due course, the trial court granted permanent

custody of the children to CSB, finding that they had been in the temporary custody of CSB for

12 or more months of a consecutive 22-month period and that permanent custody was in their

best interests. Grandmother and Father G. have appealed. Grandmother assigns three errors for

review and Father G. assigns one error for review. Father G.’s sole assignment of error is

identical to Grandmother’s first assignment of error.        Because we find this issue to be

dispositive, we address it first.
                                                3


                                                II.

                                 ASSIGNMENT OF ERROR

        THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING
        PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(d) BECAUSE THE
        STATE WITHDREW THE CLAIM OF THE CHILDREN BEING IN THE
        TEMPORARY CUSTODY OF SUMMIT COUNTY CHILDREN SERVICES
        FOR 12 OF THE LAST 22 MONTHS PRIOR TO TRIAL.

        {¶6}   Grandmother and Father G. assert that the trial court erred in relying on R.C.

2151.414(B)(1)(d), i.e. that the children had been in the temporary custody of the agency for at

least 12 of 22 consecutive months, in sole support of the first prong of the permanent custody

test.

        {¶7}   In asserting that this finding is erroneous, Grandmother and Father G. cite the fact

that, at the start of the permanent custody hearing, counsel for CSB stated that the children had

not, in fact, been in the temporary custody of the agency for 12 months before the agency moved

for permanent custody. CSB’s attorney explained that the agency would proceed to present its

case on other grounds instead. At the time, the trial judge confirmed that CSB had previously

made an alternative allegation that the children could not or should not be placed with either

parent within a reasonable time. See R.C. 2151.414(B)(1)(a). With that, the hearing proceeded.

        {¶8}   In its order granting permanent custody to CSB, the trial court found that the

children had been in the temporary custody of CSB for 12 or more months of a consecutive 22-

month period, citing R.C. 2151.414(B)(1)(d). The court made no alternative finding in support

of the requisite first prong of the permanent custody test. See R.C. 2151.414(B)(1)(a)-(e). In

particular, it did not find that the children could not or should not be placed with either parent

within a reasonable time. See R.C. 2151.414(B)(1)(a). As we have previously indicated, “[t]his

Court cannot make a factual finding in the first instance because such a ruling would exceed our
                                                 4


jurisdiction as an appellate court.” In re E.M., 9th Dist. Wayne No. 14AP0030, 2015-Ohio-641,

¶ 9, citing In re E.T., 9th Dist. Summit No. 22720, 2005-Ohio-6087, ¶ 15. See also Section

3(B)(2), Article IV, Ohio Constitution.

       {¶9}    On appeal, Grandmother and Father G. have asserted that the trial court’s sole

reliance on R.C. 2151.414(B)(1)(d), on these facts, is reversible error. The attorney for CSB has

agreed and also seeks reversal and remand to the trial court for further proceedings.

       {¶10} This Court sustains Grandmother’s first assignment of error and Father G.’s sole

assignment of error. Grandmother’s second and third assignments of error are rendered moot.

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

                                                III.

       {¶11} Grandmother’s first assignment of error and Father G.’s assignment of error are

sustained. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is

reversed and the cause is remanded for further proceedings.

                                                                                Judgment reversed
                                                                              and cause remanded.




       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
                                                5


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 CSB.




                                                    BETH WHITMORE
                                                    FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

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

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.

NEIL AGARWAL, Attorney at Law, for Appellee.

BRENDON KOHRS, Attorney at Law, for Appellee.

TONY PAXTON, Attorney at Law, for Appellee.

EMILY DURWAY, Attorney at Law, for Appellee.

LINDA BENNETT, Guardian ad Litem.
