[Cite as In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899.]




                                        IN RE C.B.
            [Cite as In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899.]
Final, appealable order — R.C. 2505.02 — When a trial court denies a children-
        services agency’s motion to modify temporary custody to permanent
        custody, terminates the placement of temporary custody with the agency,
        and awards legal custody to a parent, the order is final and appealable
        under R.C. 2505.02.
   (No. 2010-0180 — Submitted February 16, 2011 — Decided June 22, 2011.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 92775.
                                  __________________
                               SYLLABUS OF THE COURT
When a trial court denies a children-services agency’s motion to modify
        temporary custody to permanent custody, terminates the placement of
        temporary custody with the agency, and awards legal custody to a parent,
        the order is final and appealable under R.C. 2505.02.
                                  __________________
        CUPP, J.
        {¶ 1} Once C.B. was adjudicated a dependent child, the Cuyahoga
County Department of Children and Family Services (“CCDCFS”) was granted
temporary custody. CCDCFS placed C.B. with foster parents. After more than a
year, CCDCFS sought to be awarded permanent custody of the child and
termination of the rights of the natural parents, thereby allowing the agency to
place the child for adoption.
        {¶ 2} The juvenile court denied CCDCFS’s motion and terminated
CCDCFS’s temporary custody of the child. The court also ordered that the child
be placed with the father. Accordingly, it granted the father legal custody of the
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child but continued CCDCFS’s protective supervision of the child so that
progressive in-home and overnight visitation with the father could be
implemented. According to the court’s order, the temporary-custody order was to
terminate within the week.
       {¶ 3} Two days later, CCDCFS filed a motion to modify the
dispositional order. CCDCFS requested a two-month extension of temporary
custody to complete the progressive visitation schedule. In the motion, CCDCFS
asserted that the goal of gradual, increased visitation could not be achieved
without the additional time.       The court stayed the order that terminated
CCDCFS’s temporary custody, pending a hearing on CCDCFS’s motion. The
child’s mother then appealed the order granting custody to the father, and the
child’s guardian ad litem filed a cross-appeal on behalf of the child, challenging
the trial court’s denial of CCDCFS’s motion for permanent custody and the award
of legal custody to the father.
       {¶ 4} The Court of Appeals of Cuyahoga County dismissed the appeal
on the authority of In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d
886. The child’s guardian ad litem sought discretionary review by this court,
asking whether an award of legal custody by a trial court in a neglect or
dependency proceeding is a final order from which an appeal may be taken by the
minor child who is the subject of the order, whether an order granting legal
custody is a final, appealable order, and whether a minor child in a permanent-
custody case is entitled to counsel. We accepted jurisdiction. 125 Ohio St.3d
1461, 2010-Ohio-2753, 928 N.E.2d 737.
       {¶ 5} For an order to be final and appealable, it must meet the
requirements of R.C. 2505.02(B). R.C. 2505.02(B) provides:
       {¶ 6} “An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the following:




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         {¶ 7} “(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
         {¶ 8} “(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment.”
         {¶ 9} 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 appellate
court dismissed the agency’s appeal of the denial for lack of a final, appealable
order. This court affirmed and held, “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.
2505.02(B)(1) or (2).”
         {¶ 10} The rationale for our conclusion in Adams was that the order
denying permanent custody of the child to the children-services agency did not
determine the action or prevent a judgment under R.C. 2505.02(B)(1). Adams at ¶
36-37.    Rather, the parties were subject to further court orders because the
temporary-custody order remained in place and the status quo was thus
maintained.    Id. at ¶ 36.    Moreover, the children-services agency was not
foreclosed from seeking a different dispositional order, such as returning the child
to a parent, placing the child in the legal custody of a relative, or renewing a
request for permanent custody. Id. at ¶ 37.
         {¶ 11} We also concluded in Adams that a children-services agency does
not have a substantial right in the permanent custody of a child based on the fact
that the agency has temporary custody of the child. Id. at ¶ 42. See R.C.
2505.02(B)(2). In contrast, a parent does have a substantial right in the custody of
his or her child. Id. at ¶ 43. This substantial right was a basis of the holdings of
In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169, and In re H.F., 120
Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607. In Murray, this court held that



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“[a]n adjudication by a juvenile court that a child is ‘neglected’ or ‘dependent’ as
defined in R.C. Chapter 2151 followed by a disposition awarding temporary
custody to a public children services agency pursuant to R.C. 2151.353(A)(2)
constitutes a ‘final order’ within the meaning of R.C. 2505.02 and is appealable to
the courts of appeals pursuant to R.C. 2501.02.”1 Murray, syllabus. However,
the principles supporting this conclusion were that parents who are suitable
persons have a permanent right to the custody of their minor children, id. at 157,
and that parents of children who have been adjudicated neglected or dependent,
and who have been deprived of the custody of their children, have a right to
immediate appellate review “to determine if such deprivation meets the
requirements justifying such deprivation,” id. at 159. This holding was applied in
In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 9, in which
this court determined that an order adjudicating a child abused, neglected, and
dependent, and awarding temporary custody of the child to a children-services
agency, was a final order pursuant to R.C. 2505.02, that had to be appealed by the
child’s parent within 30 days of the order.
       {¶ 12} The underlying principles decided in Adams, Murray, and H.F.
guide our analysis in this case. We have previously held that custody hearings are
special proceedings. R.C. 2505.02(B)(2); Adams, 115 Ohio St.3d 86, 2007-Ohio-
4840, 873 N.E.2d 886, ¶ 43. And in this custody hearing, the juvenile court did
not simply deny CCDCFS’s motion for permanent custody of the child while
continuing the placement of temporary custody with the agency. Rather, the
juvenile court terminated CCDCFS’s temporary custody and granted legal
custody to the child’s father. The juvenile court’s disposition of legal custody
was permanent and ended the existing proceeding with respect to the child. R.C.



1. When Murray was decided, a slightly different version of R.C. 2505.02 was in effect.
Am.Sub.H.B. No. 412, 141 Ohio Laws, Part II, 3563, 3597.




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2151.42.2 Thus, the juvenile court’s order determined the action and prevented
any further judgment. R.C. 2505.02(B)(1).
        {¶ 13} R.C. 2505.02(A)(1) defines “substantial right” as a “right that the
United States Constitution, the Ohio Constitution, a statute, the common law, or a
rule of procedure entitles a person to enforce or protect.” A substantial right is a
legal right enforced and protected by law. State ex rel. White v. Cuyahoga Metro.
Hous. Auth. (1997), 79 Ohio St.3d 543, 545, 684 N.E.2d 72.
        {¶ 14} In this case, when the juvenile court considered CCDCFS’s motion
to modify temporary custody to permanent custody, the court was required by
statute to consider whether that modification was in the best interests of the child.
R.C. 2151.42(A). See also R.C. 2151.414(D) (the best-interest factors a court is
to consider at a permanent-custody hearing); In re Cunningham (1979), 59 Ohio
St.2d 100, 13 O.O.3d 78, 391 N.E.2d 1034 (the best-interest standard is the
primary consideration in permanent-custody cases). In that same proceeding,
however, the juvenile court was also required by statute to appoint a guardian ad
litem, whose purpose is to protect the interest of the child and “assist a court in its
determination of a child’s best interest.” R.C. 2151.281(B); Sup.R. 48(B)(1). In
this regard, the guardian’s role is to “perform whatever functions are necessary to
protect the best interest of the child, including, but not limited to * * * monitoring
the services provided the child by the public children services agency * * * [and
filing] any motions and other court papers that are in the best interest of the
child.” R.C. 2151.281(I). See also Sup.R. 48(D)(1) (“A guardian ad litem shall
represent the best interest of the child for whom the guardian is appointed”);


 2. See also R.C. 2151.353(A)(3)(a) (legal custody is a dispositional option following an initial
adjudication of dependency, neglect, or abuse, provided the person to whom legal custody is
awarded signs a statement that, among other things, states that “the person understands that legal
custody of the child in question is intended to be permanent in nature and that the person will be
responsible as the custodian for the child until the child reaches the age of majority”); R.C.
2151.415(A)(3) (a children-services agency that has been awarded temporary custody may request
that the child be placed in the legal custody of a relative or other interested individual).




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Sup.R. 48(D)(7) (“When a court appoints an attorney to serve as both the
guardian ad litem and attorney for a child, the attorney shall advocate for the
child’s best interest and the child’s wishes in accord with the Rules of
Professional Conduct”). Because of the unique role the guardian ad litem has in a
permanent-custody proceeding with respect to ensuring that the best interests of a
child are considered before custody modifications are made, the guardian ad litem
has a statutory right to ensure that the best interests of the child are enforced and
protected in the permanent-custody proceeding. Thus, we also conclude that the
juvenile court’s order affects a substantial right.
        {¶ 15} Therefore, we hold that when a trial court denies a children-
services agency’s motion to modify temporary custody to permanent custody,
terminates the placement of temporary custody with the agency, and awards legal
custody to a parent, the order is final and appealable under R.C. 2505.02.
        {¶ 16} Appellants presented a third proposition of law that purports to
raise a question whether a child who is a party in a permanent-custody case is
entitled to legal counsel separate from that of the guardian ad litem who is also an
attorney. In In re Williams, we held that “a child who is the subject of a juvenile
court proceeding to terminate parental rights is a party to that proceeding and,
therefore, is entitled to independent counsel in certain circumstances.” 101 Ohio
St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, syllabus. Appellants assert that the
juvenile court abused its discretion in failing to appoint separate legal counsel to
protect the child's wishes because of the conflict between the child’s wishes and
the father’s interests. We are unable to agree with that assertion.
        {¶ 17} In the juvenile court’s 2008 entry appointing the guardian ad litem,
there was no statement that the child’s wishes conflicted with the father’s
interests.   Neither did the guardian discover any conflict suggesting that
appointment of independent counsel would be appropriate.              Although the
guardian ad litem in the trial court was acting only as to the child’s best interest




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                                     January Term, 2011




and not additionally in the capacity as the child’s attorney, there is no indication
that the guardian did not faithfully discharge his duties or that there was any
reasonable basis for the juvenile court to have appointed independent counsel for
the child. R.C. 2151.281(B)(1) and (D).3 Thus, the “certain circumstances”
contemplated in Williams for the appointment of independent counsel to represent
a child who is the subject of a proceeding to terminate parental rights are not
currently presented in this case.
        {¶ 18} In our independent review of the record before us, we are also
unable to find any motion made to the trial court requesting that independent
counsel be appointed for the child, and the trial court never had occasion to rule
on this issue. Consequently, in addition to the records not supporting the claim
that the child required independent counsel in this case, the issue is not properly
before this court, and we decline to consider this matter in the first instance. This
proposition of law is therefore dismissed as having been improvidently accepted.
        {¶ 19} Accordingly, the judgment of the court of appeals is reversed, and
the cause is remanded to the appellate court for further proceedings consistent
with our decision, in accordance with the expedited appeals provision of App.R.
11.2.
                                                                            Judgment reversed
                                                                         and cause remanded.



3. In March 2009, Sup.R. 48, which addresses guardians ad litem, became effective. In an
attempt to provide guidance beyond that provided in R.C. 2151.281 for guardian ad litem
situations, this rule clearly and specifically sets forth rules applicable to the appointment and
responsibilities of a guardian ad litem. The rule requires that an order of appointment include a
“statement regarding whether a person is being appointed as a guardian ad litem only or as a
guardian ad litem and attorney for the child.” Sup.R. 48(C)(1)(a). The rule also details the
procedures for circumstances where a conflict of interest arises between the child’s best interests
and the child’s wishes. Sup.R. 48(D)(1), (7), (8), and (10). Because this rule provides much
needed guidance for situations involving guardians ad litem, future concerns with respect to the
nature of a guardian’s possible dual role as both guardian and counsel for the child should be
alleviated.




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          O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE
BROWN, JJ., concur.
          O’DONNELL, J., concurs in judgment only.
          PFEIFER, J., dissents.
                                    __________________
          MCGEE BROWN, J., concurring.
          {¶ 20} I concur in the judgment but write separately to express concern
about how the legal system has handled C.B.’s case. In 1997, Congress passed
the Adoption and Safe Families Act (“ASFA”), Pub.L. No. 105-89, 111 Stat.
2115. A key aim of this act is to prevent children from languishing in the foster-
care system. Ohio’s codification of the ASFA provides that any child who is in
temporary custody for 12 out of 22 months (with limited exceptions) shall have a
prompt permanency determination. R.C. 2151.413(D)(1) and 2151.414(A)(1) and
(A)(2). Yet five years after C.B. became a dependent child, she does not have
permanency, the adults responsible for her continue to argue over legal issues, and
she is slowly losing her ability to have a stable childhood with a permanent
family.
          {¶ 21} A parent’s right to his or her children generally trumps the rights of
all others, but not when there is clear and convincing evidence of abuse or
neglect. In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶
40-42. In the event that a court removes a child from a parent because of abuse or
neglect, the parent faces court orders to remedy the conditions causing the child’s
removal. If a parent fails within 12 months to remedy these problems or to make
substantial progress toward their remediation, the child is entitled to a
permanency determination. R.C. 2151.413(D)(1) and 2151.414(A)(1), (A)(2),
and (E)(1). It is paramount that juvenile courts stick to these time frames for the
best interest of the child.




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                                January Term, 2011




       {¶ 22} In this case, the legal system has done harm to this child. No child
should spend five years in foster care. It is unconscionable.
       {¶ 23} We are required to remand this case for determinations consistent
with our decision.    In so doing, I urge the courts to comply with the rules
requiring the speedy resolution of abuse and neglect cases and to expeditiously
move C.B.’s case to finality. App.R. 11.2(C) and (D).
       {¶ 24} When children must be removed from their parents, juvenile courts
are required to resolve their cases within statutory time frames. We do no work
that is more important than protecting children and giving them a right to a
childhood free from abuse and neglect with a permanent family. In the best of
circumstances, the birth family will be the permanent family, but when it cannot
be, we owe it to these children to give them their best opportunity to be adopted
into a loving, safe family. Unfortunately, the ability to be adopted diminishes as a
child ages in the foster-care system. For this reason, Congress and Ohio enacted
the provisions of the ASFA, and our courts must resolve these cases as quickly as
possible.
       O’CONNOR, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 25} I dissent. I would affirm the holding of the court of appeals that
there is no final, appealable order in this case. I base this conclusion on the state
of the record. The order committing the child to the temporary custody of the
Cuyahoga County Department of Children and Family Services (“CCDCFS”) was
never terminated. The court of appeals’ entry denying a motion to reconsider its
denial of an en banc consideration of the case tells the story:




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       {¶ 26} “Once again, the denial of a state’s motion for permanent custody
is not a final appealable order. Child is in protective custody of the county.
Issues remain pending in the trial court.”
       {¶ 27} In an entry signed February 1, 2009, the juvenile court judge
originally terminated CCDCFS’s temporary custody, effective February 5, 2009;
then, in response to a CCDCFS motion, in an order signed on February 3, 2009,
the judge stayed the termination of temporary custody pending a February 27,
2009 hearing. Before that hearing was held, C.B.’s mother appealed to the court
of appeals. I would hold that there was no final order in place for the mother to
have appealed from.
       {¶ 28} The case unfolded like this. In the judgment entry signed February
1, 2009, the juvenile court judge decreed:
       {¶ 29} “The order heretofore made committing the child to the temporary
custody of the Cuyahoga County Department of Children and Family Services is
terminated effective February 5, 2009. The child is committed to the protective
supervision of CCDCFS with the legal custody of the father, Anthony Wylie * *
*.
       {¶ 30} “Amended case plan to be filed with the following modifications:
reinstatement of unsupervised visitation; progressive implementation for in-home
visitation, bi-weekly extended visitation, and overnight weekend visitation;
referral for family preservation to assist child and parent with transition needs and
services including appropriate day care, medical care, etc.
       {¶ 31} “This matter is continued to February 27, 2009 at 9:30 a.m. for a
custody review hearing pursuant to O.R.C. §2151.417(C), for preliminary hearing
upon the [child support enforcement agency’s] motion to establish support filed
April 18, 2006 and Attorney Witt’s motion for attorney fees filed 4-28-08.
       {¶ 32} “Parties are advised that they have thirty (30) days from the date of
this entry to file an appeal with the Court of Appeals.”




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                               January Term, 2011




       {¶ 33} Despite the fact that the entry bears the date of February 1, 2009,
under the judge’s signature, a statement below that date reads, “Filed with the
clerk and journalized by Cuyahoga Juvenile Court Clerks [sic] Office, Volume
10, Page 2556, February 5, 2009, cjdmh.”
       {¶ 34} On February 3, 2009, CCDCFS filed a motion for modification of
the dispositional order and requested an immediate hearing. The agency asked
that its temporary custody be extended to April 16, 2009.
       {¶ 35} In response, the judge released another order:
       {¶ 36} “This matter came on for consideration this 3rd day of February,
2009 before the Honorable Judge Alison L. Floyd upon the [sic] with prayer for
as [sic] to the Child heretofore judged to be dependent.
       {¶ 37} “Whereupon the Court finds that CCDCFS through counsel has
entered a written notice for modification of dispositional order. The Court, upon
its own motion, shall stay its order terminating the agency temporary custody of
the child pending hearing on February 27, 2009.
       {¶ 38} “It is therefore ordered that the Court’s prior order terminating the
temporary custody of CCDCFS effective February 5, 2009 is stayed from
execution pending review hearing on February 27, 2009 at 9:30 a.m. and for
preliminary hearing upon the agency’s motion for modification of the
dispositional order of February 1, 2009.”
       {¶ 39} This order was dated February 3, 2009, beneath the judge’s
signature line. Again, a separate statement below that date states that the order
was filed on February 5, 2009: “Filed with the clerk and journalized by Cuyahoga
County Juvenile Court Clerks [sic] Office, Volume 10, Page 2138, February 5,
2009, cjds3.”
       {¶ 40} C.B.’s mother filed a notice of appeal on February 5, 2009.
Nothing in the record indicates that the February 27, 2009 hearing that may have
modified the court’s decision ever occurred. There was no final order to form the



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basis of an appeal. This case was not over at the juvenile court level. Although
the juvenile court’s handling of this case until this point inspires little confidence,
the correct disposition here is to affirm the judgment of the court of appeals and
remand the case to the juvenile court for a resolution.
                               __________________
       R. Brian Moriarty, for appellant C.B.
       Jonathan N. Garver, for appellant Thomas Kozel, guardian ad litem, for
C.B.
       Anthony M. Wylie, pro se.
       Judith L. Layne, urging reversal for amicus curiae Guardian Ad Litem
Project.
       Katherine Hunt Federle, urging reversal for amicus curiae Justice for
Children Project.
                            ______________________




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