[Cite as In re J.A., 2014-Ohio-3423.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100913



                                           In RE: J.A.
                                          A Minor Child


                         [Appeal by the Cuyahoga County Department
                              of Children and Family Services]




                                          JUDGMENT:
                                           AFFIRMED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Juvenile Division
                                   Case No. DL-13107373

              BEFORE:            Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.

              RELEASED AND JOURNALIZED:                      August 7, 2014
                                     -i-

ATTORNEYS FOR APPELLANT, C.C.D.C.F.S.

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Laura M. Brewster
Assistant Prosecuting Attorney
4261 Fulton Parkway
Brooklyn, Ohio 44144


ATTORNEYS FOR APPELLEE

For J.A.

Brant N. Dichiera
Assistant Cuyahoga County Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106

Cullen Sweeney
Assistant Cuyahoga County Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113

J.A., Father of J.A., pro se
775 East 152 Street
Room S15
Cleveland, Ohio 44110

H.K., Mother of J.A., pro se
14037 Granger Road
Maple Heights, Ohio 44137
Brenda Gray
Guardian Ad Litem
13940 Cedar Road
Suite 307
Cleveland Heights, Ohio 44118
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Cuyahoga County Department of Children and Family

Services (“CCDCFS”) appeals the juvenile court’s decision committing J.A. to the

temporary custody of the agency. CCDCFS assigns the following error for our

review:

      I. The trial court’s order committing J.A. to the temporary custody of
      CCDCFS is a final appealable order.

      II. The trial court’s order committing J.A. to the temporary custody of
      CCDCFS is against the manifest weight of the evidence and is not in
      the best interest of the child.

      {¶2} Having reviewed the record and pertinent law, we affirm the juvenile

court’s decision. The apposite facts follow.

      {¶3} On May 23, 2013, the state of Ohio filed a complaint in juvenile court

alleging that J.A. (D.O.B. 09/09/1996) raped his nine-year-old sister while the

family was living in a homeless shelter. On May 24, 2013, J.A. pleaded not guilty

at his arraignment, and the juvenile court remanded him to the Cuyahoga County

Juvenile Detention Center (“DH”) pending further proceedings.

      {¶4} On June 27, 2013, the juvenile court committed J.A. to the emergency

temporary custody of CCDCFS, but continued his placement in the DH. On July

18, 2013, CCDCFS filed a motion to stay execution of the order of emergency
temporary custody to the agency, pending the outcome of the delinquency

allegations.

      {¶5} At the adjudication hearing on August 20, 2013, J.A. admitted to an

amended charge of gross sexual imposition, a felony of the third degree if

committed by an adult. On that same date, the juvenile court denied CCDCFS’s

motion to stay the emergency temporary custody order and underscored its previous

order committing J.A. to the agency. Again, the juvenile court remanded J.A. to the

DH.

      {¶6} At a dispositional hearing on September 13, 2013, J.A.’s attorney

orally motioned the court for an order committing J.A. to the temporary custody of

CCDCFS on the grounds that J.A. was a dependent child. On September 26, 2013,

the juvenile court journalized an entry indicating that it was holding the motion in

abeyance and continued the matter for a full hearing. The juvenile court then

released J.A. from the DH to his CCDCFS case worker for placement through the

agency.

      {¶7} At a second dispositional hearing on October 24, 2013, Danielle

Yencha, investigative probation officer, presented a dispositional report and

recommendation. Yencha indicated that CCDCFS has been involved with the

family for the preceding ten years, generally for father’s abusive behavior, as well
as J.A.’s destructive and abusive behavior. Yencha indicated that J.A. was abusive

and physically aggressive towards his siblings and abusive to his mother.

      {¶8} Yencha also indicated that J.A. has been diagnosed with ADHD, mood

disorder, schizoaffective disorder, bipolar features, depressive disorder, pervasive

developmental disorder, and disruptive behavior.       Medical professionals have

prescribed a variety of medication including Concerta, Ritalin, Seroquel, Clonidine,

Trazodone, Zyprexa, and Risperdal to address J.A.’s condition. Yencha indicated

J.A.’s psychiatrist had recently took J.A. off the medication due to a lack of

response.

      {¶9} In addition, Yencha indicated that because J.A. sexually molested his

sister, his mother did not feel safe for him to return home. Yencha discussed the

Mokita Assessment that had been ordered. Yencha stated that the assessment

revealed that J.A. lacked the proper knowledge of legal and illegal sexual behavior,

and thus posed a risk to the community. The assessment concluded that J.A. was

hardwired and had very little opportunity for true behavior change.

      {¶10} Yencha indicated that J.A. was residing at Cleveland Christian Home,

was involved in sexual counseling, and was slowly making progress. Yencha

recommended that J.A. remain in the Cleveland Christian Home’s residential

treatment program.
      {¶11} Laura Brewster appeared on behalf of CCDCFS and voiced opposition

to the motion for an order of temporary custody of J.A. to the agency. Brewster

argued that J.A. posed a risk to the community including his sister because of his

behavior and psychological issues. Brewster maintained that J.A. should be placed

through the juvenile court and not the agency.

      {¶12} At the final dispositional hearing on December 12, 2013, Yencha

reiterated the report from the previous dispositional hearing.    Anthony Cook,

probation manager, reported that J.A.’s mother was still unwilling to have her son

return home and argued that mother’s unwillingness renders J.A. a dependent child.

 Cook recommended that CCDCFS retain custody of J.A., so that they could

provide transitional services upon completion of treatment. Brewster re-voiced the

agency’s opposition to the order of temporary custody.

      {¶13} The juvenile court classified J.A. as a Tier II sexual offender,

committed him to the legal custody of the Ohio Department of Youth Services

(“ODYS”) for six months, but suspended the commitment and placed him on one

year of community control.       The juvenile court also committed J.A. to the

temporary custody of CCDCFS, but ordered him to continue at the Cleveland

Christian Home’s residential treatment facility.   CCDCFS now appeals.

                             Final Appealable Order
      {¶14} We begin by setting forth why the order granting temporary custody is

final and appealable under R.C. 2505.02.      Immediately after CCDCFS appealed

the juvenile court’s decision committing J.A. to the custody of its agency, J.A. filed

a motion to dismiss on the grounds that the decision was not final and appealable.

For the reasons that follow, we decline to dismiss the appeal.

      {¶15} Appellate courts “have such jurisdiction as may be provided by law to

review and affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district[.]” Ohio Constitution,

Article IV, Section 3(B)(2). If a court’s order is not final and appealable, we lack

jurisdiction to review the matter and we must dismiss the appeal. In re S.M.B., 8th

Dist. Cuyahoga No. 99035, 2013-Ohio-1801, ¶ 4.

      {¶16} R.C. 2505.02(B)(2) provides that an order is final and appealable if it

“affects a substantial right made in a special proceeding or upon a summary

application in an action after judgment.” “Substantial right” includes “a right that *

* * a statute * * * entitles a person to enforce or protect.” R.C. 2505.02(A)(1). A

“special proceeding” is “an action or proceeding that is specially created by statute

and that prior to 1853 was not denoted as an action at law or a suit in equity.” R.C.

2505.02(A)(2).

      {¶17} Juvenile court proceedings are special proceedings. State ex rel.

Fowler v. Smith, 68 Ohio St.3d 357, 360, 1994-Ohio-302, 626 N.E.2d 950. See
also In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 12

(“[C]ustody hearings are special proceedings”). It follows, then, that if the

temporary custody order affects a “substantial right,” the order is final and

appealable.

       {¶18} In the instant case, once the court ordered CCDCFS to assume

temporary custody, CCDCFS assumed statutory obligations to act in J.A.’s best

interest. See R.C. 5153.16(A)(7). Recently, in In re C.L.M., 8th Dist. Cuyahoga

No. 99622, 2013-Ohio-4044, we stated:

       CCDCFS is required to (“[a]ccept custody of children committed to
       the public children services agency by a court exercising juvenile
       jurisdiction.”); R.C. 5153.16(A)(4) (mandating that CCDCFS provide
       a level of care that the agency considers to be in the best interest of the
       child). The emergency custody order required CCDCFS to take on the
       parental role of providing for C.L.M.’s basic needs (food, clothing,
       shelter), his educational needs, and his medical and psychological
       needs. In short, the order imposed custody on CCDCFS where no
       custody previously existed, and required CCDCFS to fulfill a
       multitude of statutory obligations, which included finding an
       appropriate placement for a tier II sex offender, who expresses
       homicidal ideations.

Id. at ¶ 17.

       {¶19} Here, for the same reasons stated in In re C.L.M., we conclude that a

substantial right is affected in this case. Because the temporary custody order

affects a substantial right made in a special proceeding, the order is final and
appealable under R.C. 2505.02(B)(2).        Consequently, we have jurisdiction to

review the appeal. Accordingly, we overrule the first assigned error.

                                Temporary Custody

      {¶20} In the second assigned error, CCDCFS argues the juvenile court’s

decision granting the agency temporary custody of J.A. is against the manifest

weight of the evidence and not in J.A.’s best interest.

      {¶21} When reviewing custody issues, a juvenile court’s decision is granted

great deference and will not be disturbed absent an abuse of discretion. Smith v.

Smith, 12th Dist. Butler No. CA2005-04-091, 2006-Ohio-2136. More than mere

error of judgment, an abuse of discretion requires that the court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983).

      {¶22} Further, the discretion which a trial court enjoys in custody matters

should be accorded the utmost respect, given the nature of the proceeding and the

impact the court’s determination will have on the lives of the parties concerned. In

re L.C., 8th Dist. Cuyahoga No. 93657, 2010-Ohio-778, ¶ 16, citing In re

Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-Ohio-4137.

      {¶23} In the instant case, CCDCFS does not dispute that the juvenile court

has the authority to issue an order granting temporary custody to the agency after

adjudicating a child delinquent. Nor does CCDCFS dispute the juvenile court’s
authority under R.C. 2151.353 to issue orders for the care and protection of an

abused, neglected, or dependent child. Instead, CCDCFS argues that J.A. is not

abused or neglected, thus the juvenile court’s order does not advance the purposes

of R.C. 2152.01(A), which include the following:

      * * * [T]o provide for the care, protection, and mental and physical
      development of children subject to this chapter, protect the public
      interest and safety, hold the offender accountable for the offender’s
      actions, restore the victim and rehabilitate the offender.

      {¶24} However, despite CCDCFS’s protestations, the record establishes that

J.A. is a dependent child and thus, the trial court had authority under R.C. 2151.353

to issue the instant order of temporary custody to the agency. Throughout the

proceedings below, the record reveals that J.A.’s mother would not allow him to

return home because of the underlying sexual assault of his sister. The record also

reveals that J.A.’s mother had difficulty maintaining stable housing and was

actually living in a homeless shelter at the time of the offense.

      {¶25} In addition, the record also revealed that J.A. suffered from a host of

psychological problems and had been diagnosed with ADHD, mood disorder,

Schizoaffective Disorder, Bipolar Features, Depressive Disorder, Pervasive

Developmental Disorder and Disruptive Behavior. Further, the record reveals that

J.A. was in a residential treatment facility geared to addressing his psychological

and behavioral challenges. Finally, the record reveals that J.A. would be 18 years
old by the time the ordered community control would end. Therefore, the order of

temporary custody to the agency would be important for the transitional services

that J.A. would need upon the completion of treatment and the end of the

community control sanctions.

      {¶26} Based on the foregoing, we conclude the juvenile court did not abuse

its discretion in committing J.A. to the custody of CCDCFS. Accordingly, we

overrule the second assigned error.

      {¶27} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The trial court’s adjudication of delinquency having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of commitment.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., (CONCURS
WITH ATTACHED OPINION)
SEAN C. GALLAGHER, P.J., CONCURRING:

      {¶28} I concur with the judgment and analysis of the majority on both

assigned errors, but write separately to address concerns raised by this case.

      {¶29} First, I am perplexed to see we are required to analyze whether we

have a final appealable order ostensibly because it is CCDCFS, or more properly

the state of Ohio, initiating this appeal. Although the majority opinion with its

reliance on the case of In re C.L.M., 8th Dist. Cuyahoga No. 99622,

2013-Ohio-4044, is on point, it would seem the legislature should examine whether

R.C. 5153.16 or R.C. 2945.67 should afford prosecutors an express right to appeal

in cases where temporary custody is intertwined with an adjudication of

delinquency.

      {¶30} Because I can find no provision in R.C. 2152.19 that limits a judge’s

discretion to award or grant temporary custody to CCDCFS after adjudicating a

child delinquent, I must concur in the resolution of the second assigned error.

Nevertheless, this is a slippery slope that can lead judges to duplicating services and

consuming limited resources, albeit with a noble intent, but with a costly result.

At some point, the legislature may wish to look more closely at the dividing line
between delinquency and dependency.               Although they may arguably be

interrelated at times, resources are not limitless.
