[Cite as In re M.B., 2013-Ohio-652.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




IN THE MATTER OF:

        M.B.,                                          CASE NO. 17-12-19

ADJUDGED ABUSED, NEGLECTED
AND DEPENDENT CHILD.

[FLOYD T. –                                            OPINION
     APPELLANT].




                  Appeal from Shelby County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2011-ABU-0009

                       Judgment Reversed and Cause Remanded

                          Date of Decision: February 25, 2013




APPEARANCES:

        James R. Gudgel for Appellant

        Jeffrey J. Beigel for Appellee
Case No. 17-12-19


WILLAMOWSKI, J.

        {¶1} Father-Appellant Floyd T. (“Floyd”) brings this appeal from the

judgment of the Court of Common Pleas of Shelby County, Juvenile Division,

terminating his parental rights. For the reasons set forth below, the judgment is

reversed and the matter is remanded.

        {¶2} On May 4, 2011, the Shelby County Department of Jobs and Family

Services – Children Services Division (“the Agency”) filed a complaint naming

the minor child, M.B., and her parents. Said complaint appears to be based on

abuse, neglect, and dependency. At that time, M.B. resided with her mother,

Tammy M. (“Tammy”). A hearing was held and on June 13, 2011, the trial court

determined that M.B. was an abused, neglected, and dependent child. Temporary

custody of M.B. was granted to the Agency.1 On February 8, 2012, the Agency

filed a motion for permanent custody of M.B.2 Tammy filed for legal custody of

M.B. on March 28, 2012. A hearing on the outstanding motions was held on June

21, 2012. After the hearing, Floyd filed a motion for legal custody of M.B. on

June 24, 2012.         On July 24, 2012, the trial court entered judgment denying

Tammy’s and Floyd’s respective motions for legal custody of M.B. The trial court

then terminated the parental rights of Floyd, but did not terminate the parental

rights of Tammy and therefore denied the Agency’s motion for permanent

1
 The Agency was also granted temporary custody of M.B.’s minor sisters, T.M. and A.B.
2
  As of the date of the filing for permanent custody, T.M. had been permanently placed with her father and
A.B. had been returned to the custody of Tammy.

                                                   -2-
Case No. 17-12-19


custody. The temporary custody of M.B. was continued with the Agency and the

caseplan was continued as to Tammy.3 Floyd appeals from this judgment and

raises the following assignments of error

                                   First Assignment of Error

        The court abused its discretion in terminating [Floyd’s] parental
        rights and maintaining [Tammy’s] parental rights.

                                 Second Assignment of Error

        The court’s decision when it found that it was in the best interest
        of the minor child to terminate [Floyd’s] parental rights was
        against the manifest weight of the evidence.

        {¶3} The right to raise one’s own child is a basic and essential civil right.

In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169. “Parents have a

‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. Nos. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–

1269, ¶ 6.         These rights may be terminated, however, under appropriate

circumstances and when all due process safeguards have been followed.                                 Id.

When considering a motion to terminate parental rights, the trial court must

comply with the statutory requirements set forth in R.C. 2151.414.

        {¶4} In the first assignment of error, Floyd claims that the trial court erred

by terminating Floyd’s parental rights without terminating Tammy’s parental

rights. This court agrees with Floyd’s premise that the trial court cannot award
3
   This court makes no determinations regarding the trial court’s rulings as to Tammy. That portion of the
case is not before this court.

                                                   -3-
Case No. 17-12-19


permanent custody to the Agency while a parent still has parental rights.

However, the trial court in this case did not award permanent custody to the

Agency.    The trial court continued the award of temporary custody that the

Agency already had. The question before this court is whether the trial court may

terminate the parental rights of one parent when denying the motion for permanent

custody.

      {¶5} This court has previously addressed this issue in In re Matthews, 3d

Dist. Nos. 9-07-28, 9-07-29, 9-07-34, 2008-Ohio-276. In Matthews, the trial court

terminated the rights of the mother of one child while denying the motion of the

Marion County Children’s Services Board for permanent custody of the child.

The trial court continued the temporary custody with the agency.

      Our research has not revealed any cases where a termination of
      parental rights occurred when one parent was granted
      placement and CSB’s motion for permanent custody was denied.
      Neither the trial court nor the State has cited any statutory
      provisions or case law in support of the trial court’s authority to
      terminate Matthews’ parental rights in this situation. We
      conclude that the trial court was without authority to terminate
      Matthews’ parental rights at this time.

      Two important premises require this conclusion. First the plain
      language of R.C. 2151.414(B)(1)(a), under which the trial court
      proceeded, does not provide for termination of parental rights
      when one parent is awarded placement and temporary care and
      custody remains with CSB. In addition, termination of parental
      rights is not necessary in this situation; and if not necessary,
      should not be ordered. In re D.A., 113 Ohio St.3d 88, 2007-Ohio-
      1105 * * *, ¶11 (“The termination of parental rights should be an
      alternative of ‘last resort.’”).

                                       -4-
Case No. 17-12-19



       Second, parents have a fundamental liberty interest in the care,
       custody, and management of their children. In re Murray, [52
       Ohio St.3d 155, 157], * * *. To protect their fundamental liberty
       interest, “parents must be afforded every procedural and
       substantive protection the law allows.” * * * R.C. 2151.414 is the
       substantive law that provides parents with the due process of
       law required to protect their fundamental interest. Thus, when
       the trial court failed to follow R.C. 21515.414(B)(1)(a) by
       ordering that Matthews’ parental rights be terminated, it failed
       to provide her with the law’s substantive protections and due
       process of law.

Matthews, supra at ¶51-53 (citations omitted).

       {¶6} In this case, like in Matthews, the motion for permanent custody was

denied and temporary custody continued with the Agency. Since the Agency

lacks permanent custody, the termination of one parent’s rights without

terminating the others is not necessary. It has no effect on the placement of the

child. Termination of parental rights should not be ordered if it is not necessary.

In re D.A., supra.     Although the Agency argues that this case differs from

Matthews because the child was not placed with Tammy, this argument is a

distinction without a difference. The end result is that the motion for permanent

custody was denied and there is no need at this point in time to terminate the rights

of a parent. For this reason, the first assignment of error is sustained.

       {¶7} Having found that the trial court erred in terminating the rights of

Floyd while denying the motion of the Agency for permanent custody, the



                                          -5-
Case No. 17-12-19


questions raised by the second assignment of error are rendered moot. Therefore,

this court need not address the second assignment of error.

       {¶8} The judgment of the Court of Common Pleas of Shelby County,

Juvenile Division is reversed and the matter is remanded for further proceedings.

                                                          Judgment Reversed and
                                                               Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/jlr




                                        -6-
