       [Cite as In re S Children, 2018-Ohio-5010.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO


IN RE: THE S CHILDREN                           :    APPEAL NO. C-170617
                                                     TRIAL NO. F-16-2167z
                                                :
                                                        O P I N I O N.
                                                :




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is:             Affirmed in Part, Reversed in Part, and Cause
                                       Remanded

Date of Judgment Entry on Appeal:



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee,
Assistant Prosecuting Attorney, for Appellant Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Klarysa Benge,
Assistant Public Defender, Guardian ad Litem for C.S. and N.S.,

Kacy Eaves for C.S. and N.S.,

Kroener, Hale & Penick and Angela Penick for Appellee Mother,

Stagnaro, Hannigan, Koop and Chad G. Koop for Appellee Father.
                       OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

        {¶1}    This appeal was originally consolidated with the companion appeals of

children N.S. and C.S. and of their guardian ad litem (“GAL”). The three appeals

arose out of the trial court’s order dismissing the permanent-custody complaint of

the Hamilton County Department of Job and Family Services (“HCJFS”) as to

children N.S. and C.S,1 but continuing the case as to their siblings. The trial court

stayed its partial judgment pending the resolution of the appeals, allowing the

continuation of an earlier agreement vesting interim custody of the children with

HCJFS.

        {¶2}    Concerned that we lacked jurisdiction over HCJFS’s appeal, we sua

sponte severed HCJFS’s appeal, but disposed of the children’s and the GAL’s appeals,

affirming the trial court’s judgment in part, reversing in part, and remanding for

further proceedings. See In re the S Children, 1st Dist. Hamilton Nos. C-170624 and

C-170653, 2018-Ohio-2961 (“S Children I”). After severing the appeals, we asked the

parties to brief the issue of whether we had jurisdiction over HCJFS’s appeal.

Specifically, the parties were asked whether HCJFS had a “substantial right” as

defined in R.C. 2505.02(A)(1) affected by the trial court’s partial judgment, thereby

meeting the definition of a “final order” under R.C. 2505.02(B).

        {¶3}    We now hold that the trial court’s judgment dismissing HCJFS’s

complaint, filed under R.C. 2151.27 and alleging that N.S. and C.S. were abused,

neglected, and dependent, affected HCJFS’s substantial right, where the judgment



1 The trial court deemed A.S., the deceased sibling of N.S. and C.S., dismissed from the complaint
due to his death, which was allegedly a homicide. HCJFS failed to present an assignment of error
challenging the trial court’s dismissal of A.S. due to his death or any argument challenging the
court’s dismissal on that basis. Accordingly, we do not address on appeal the trial court’s
dismissal of A.S. from the complaint.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



permanently deprived HCJFS of a remedy that it would otherwise possess based on

its statutory right and duty, under R.C. 5153.16(A) and as their legal custodian, to

intervene to protect these children from the alleged acts of their parents. As further

discussed below, the trial court’s order, therefore, is final and appealable as to

HCJFS.

                                  Jurisdictional Analysis

       {¶4}     Under Article IV, Section 3(B)(2), Ohio Constitution, “[c]ourts of

appeals shall 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 * * *.” R.C. 2505.02(B) defines types of final

orders. In relevant part, that code section states that

       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:

                (1) An order that affects a substantial right in an action that in

                effect determines the judgment and prevents a judgment;

                (2) An order that affects a substantial right made in a special

                proceeding or upon a summary application in an action after

                judgment.

       {¶5}     R.C. 2505.02(B)(2) applies to the appeal brought by HCJFS because

the trial court’s dismissal of the complaint arises out of a special proceeding and

affects the agency’s substantial right to seek an adjudication of abuse, neglect, or

dependency to protect those two children. We need not decide if R.C. 2505.02(B)(1)

applies also.

       {¶6}     HCJFS’s role as a public children-services agency. HCJFS

is the public children-services agency in Hamilton County. See R.C. 5153.02. A



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                       OHIO FIRST DISTRICT COURT OF APPEALS



public children-services agency has broad, statutory authority to intervene to protect

a child’s health and safety. See R.C. 5153.16; In re C.F., 113 Ohio St.3d 73, 2007-

Ohio-1104, 862 N.E.2d 816, ¶ 28; In re Collier, 4th Dist. Athens No. CA-1494, 1992

WL 21229 (Feb. 4, 1992), cited in In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-

Ohio-5618, ¶ 38. The agency, in fact, has a statutory duty to intervene on behalf of

children in its jurisdiction it deems in need of “public care or protective services.”

R.C. 5153.16(A).

       {¶7}   As part of HCJFS’s statutory authority and duty to intervene to protect

children, the agency “shall” investigate a report of child abuse or neglect, or a threat

of abuse or neglect, reported pursuant to Ohio’s child-abuse-reporting law. See R.C.

2151.421(G)(1).    When necessary, the agency shall provide emergency support

services and file a complaint. R.C. 2151.421(G)(2) and (J). In exercising its powers,

“[t]he [HCJFS] * * * shall have the capacity possessed by natural persons to institute

proceedings in any court.” R.C. 5153.18(A).

       {¶8}   Generally, if HCJFS believes that a child is abused, neglected or

dependent, and that immediate removal of the child from the child’s home is

necessary, the agency will notify the court and seek an ex parte emergency order

authorizing the taking of the child into custody. R.C. 2151.31. If the order is granted

and the child is placed in shelter care with the agency, the agency must immediately

file a complaint conforming with R.C. 2151.27, alleging the abuse, neglect, or

dependency, and must seek at least interim temporary custody pending disposition

of the case. See R.C. 2151.27(A)(1), 2151.31(D), and 2151.33(C)(2). In its complaint,

the agency may request permanent custody as a preferred or alternative disposition.

See R.C. 2151.27(C).




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   The complaint alleging abuse, neglect, or dependency is governed by

R.C. 2151.27, which provides in relevant part as follows:

       any person having knowledge of a child who appears * * * to be an * * *

       abused, neglected, or dependent child may file a sworn complaint with

       respect to that child in the juvenile court of the county in which the

       child has a residence or legal settlement or in which the * * * abuse,

       neglect or dependency allegedly occurred.

                                          ***

       If the complainant in a case in which a child is alleged to be an abused,

       neglected, or dependent child desires permanent custody of the child

       or children, temporary custody of the child or children, whether as the

       preferred or an alternative disposition, or the placement of the child in

       a planned permanent living arrangement, the complaint shall contain

       a prayer specifically requesting permanent custody, temporary

       custody, or the placement of the child in a planned permanent living

       arrangement.

R.C. 2151.27(A)(1) and (C).

       {¶10} If the trial court adjudicates a child abused, neglected, or dependent,

the court retains jurisdiction over that child until the child reaches the age of 18, with

a few exceptions, including the adoption of the child. R.C. 2151.353(F)(1). After the

adjudication, the court then orders a disposition, which may include committing the

child to the temporary or permanent custody of a public children-services agency, as

provided in R.C. 2151.353(A)(2)(a) and (4), or placing the child in a planned

permanent living arrangement with a public children-services agency, as provided in

R.C. 2151.353(A)(5).



                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} Here, the trial court granted HCJFS’s request for an ex parte

emergency order and placed N.S. and C.S. in the interim temporary custody of

HCJFS. As defined by statute, “temporary custody” means “legal custody of a child

who is removed from the child’s home” that may be terminated “at any time” by the

court or the person who executed an agreement for temporary custody.             R.C.

2151.011(A)(55); see Juv.R. 2(OO). “Legal custody” means “a legal status that vests

in the custodian the right to have physical care and control of the child and to

determine where and with whom the child shall live, and the right and duty to

protect, train, and discipline the child and to provide the child with food, shelter,

education, and medical care, all subject to any residual parental rights, privileges,

and responsibilities.” (Emphasis added.) R.C. 2151.011(A)(21); see Juv.R. 2(V).

“Custodian” includes a public children services agency that has temporary custody of

a child.   R.C. 2151.011(A)(11); see Juv.R. 2(H).      HCJFS’s temporary custody

continued by agreement of the parties until the court dismissed the complaint.

       {¶12} Actions       involving    allegedly     abused,     neglected,      or

dependent children are special proceedings. Civil actions such as this one

brought by a public children-services agency alleging abuse, neglect or dependency

of a child and seeking to temporarily or permanently terminate parental rights are

special proceedings created by statute, because they were unknown under the

common law. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶

43; S Children I, 1st Dist. Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961, ¶

10; In re M.H. and L.S., 1st Dist. Hamilton Nos. C-130703 and C-130704, 2014-Ohio-

1050, ¶ 4. Because the action instituted by HCJFS is a special proceeding, the first

prong of the R.C. 2505.02(B)(2) analysis to determine HCJFS’s present right to

appeal is undisputedly satisfied.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} HCJFS has a substantial right affected by the trial

court’s order dismissing the complaint alleging abuse, neglect and

dependency. The other requisite inquiry under R.C. 2505.02(B)(2) is whether the

judgment dismissing HCJFS’s complaint alleging abuse, neglect, and dependency

“affects” a “substantial right.” A “substantial right” is “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.” R.C. 2505.02(A)(1). A substantial

right has been “affect[ed]” for purposes of R.C. 2505.02(B)(2) only if the appellant

will be denied effective relief in the future without immediate review of the judgment

or order. Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993); S

Children I at ¶ 11.

       {¶14} Ordinarily, a court order depriving a person of a remedy that the

person would otherwise possess deprives that person of a substantial right. Chef

Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989),

quoted in In re W.W., 190 Ohio App.3d 653, 2010-Ohio-5305, 943 N.E.2d 1055, ¶ 20

(11th Dist.).

       {¶15} Here, HCJFS, with the statutory right and duty to intervene to protect

N.S. and C.S., filed a complaint under R.C. 2157.27 seeking an adjudication that N.S.

and C.S. were abused, neglected, and dependent. HCJFS requested in its fourth

amended complaint a disposition of permanent custody of the children, as the

preferred disposition, or temporary custody, as an alternative disposition. The trial

court’s dismissal of that complaint permanently deprived HCJFS, legal custodian of

the children, of its substantial right to seek and obtain protection for N.S. and C.S.

due to the conduct of their parents, as alleged in the complaint. See Juv.R. 29(F)(1).




                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} The trial court’s judgment also terminated HCJFS’s interim custody of

those children and returned the children to their parents, an outcome that may result

in irreparable harm if the allegations of the complaint are true. Thus, appropriate

relief in the future would be foreclosed in the absence of an immediate appeal. The

trial court’s judgment, therefore, affects a substantial right of HCJFS to fulfill its

statutory obligation to these two children.

       {¶17} The trial court’s judgment is final and appealable under

R.C. 2505.02(B)(2). The trial court’s order was issued in a special proceeding,

dismissed HCJFS’s complaint alleging abuse, neglect and dependency, and

permanently deprived HCJFS of its right and duty to seek and obtain protection for

those children based on the allegations of the complaint. Consequently, we hold that

order is a final appealable order under R.C. 2505.02(B)(2).

       {¶18} Our holding is consistent with this court’s recent decision in In re L.A.,

2014-Ohio-894, 9 N.E.3d 525 (1st Dist.). In that case, after an adjudication of

dependency, the children were placed in the temporary custody of HCJFS, which

eventually moved for permanent custody of the children. The juvenile court rejected

the magistrate’s decision awarding permanent custody to HCJFS and remanded the

case for a new hearing to determine whether the grandparents and parents would be

an appropriate placement for the children.        The court further ordered that the

children remain in foster care under orders of supervision, but specifically noted that

HCJFS’s temporary custody of the children had terminated by operation of law, and

directed HCJFS to investigate the suitability of other potential legal custodians. This

court allowed an appeal by HCJFS, recognizing HCJFS had “a statutory duty to

protect the best interests of the children after the court ordered the agency to

continue to investigate the suitability of the mother and maternal grandmother as



                                              8
                     OHIO FIRST DISTRICT COURT OF APPEALS



legal custodians,” and that a substantial right was affected by the trial court’s order

that left the children without a safe and secure placement. Id. at ¶ 7.

       {¶19} Unlike in L.A., where the trial court failed to award custody to anyone,

but continued to exercise jurisdiction over the children, the trial court in this case

dismissed the complaint, terminated HCJFS’s interim custody of the children, and

returned custody to the children’s parents. Thus, the trial court’s order terminating

the proceedings with respect to N.S. and C.S. has a greater effect on the substantial

rights of HCJFS to intervene to protect children than the order in L.A.

       {¶20} Our holding is also consistent with other case law. The Eleventh

District Court of Appeals in In re W.W., 190 Ohio App.3d 653, 2010-Ohio-5305, 943

N.E.2d 1055, recognized that a juvenile court’s dismissal of an abuse complaint for

lack of venue “deprived” the Lake County Department of Job and Family Services of

its “right to prosecute abuse proceedings on behalf of W.W.” Id. at ¶ 22. Although

the court did not use the phrase “affected a substantial right” in its analysis, the only

reasonable inference from the decision is that the court made this determination

when it found it had jurisdiction to proceed.

       {¶21} The Eighth District Court of Appeals in In re D.A., 8th Dist. Cuyahoga

No. 95188, 2010-Ohio-5618, expressly held that a trial court order terminating a

children-services agency’s temporary custody of a dependent child and granting legal

custody to the child’s father “affected” a “substantial right” of the agency, because the

agency lost the means to protect the child as the child’s temporary custodian. Id. at ¶

39.

       {¶22} Other appellate courts have entertained the state’s appeal from a

dismissal of an abuse, neglect or dependency complaint without addressing the

jurisdictional issue and thus implicitly recognizing that the order affected a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



substantial right. See, e.g., In re Z.P., 5th Dist. Stark No. 2008CA00209, 2009-

Ohio-378; In re Prendergast, 8th Dist. Cuyahoga No. 78946, 2001 WL 1110298

(Sept. 13, 2001).

       {¶23} And this court has routinely entertained appeals from the state upon a

final disposition returning the children to a parent after a finding of abuse, neglect,

or dependency. See, e.g., In re K.T.1, 1st Dist. Hamilton Nos. C-170667, C-170687, C-

170701, C-170702 and C-170707, 2018-Ohio-1381; In re C.M., 1st Dist. Hamilton

Nos. C-150365 and C-150396, 2015-Ohio-3971; In re L.W.J., 1st Dist. Hamilton Nos.

C-140282 and C-140283, 2014-Ohio-4181. Accord In re L.O., 8th Dist. Cuyahoga

No. 101805, 2015-Ohio-1458; In re D.G., 10th Dist. Franklin No. 09AP-1122, 2010-

Ohio-2370.

            {¶24} In re Adams is distinguishable. In this case we hold that

HCJFS has a substantial right, created by statute, to seek and obtain protection for

N.S. and C.S., and that that right is affected by the trial court’s order dismissing the

abuse, neglect, and dependency complaint HCJFS filed on behalf of those children as

their legal custodian. The Ohio Supreme Court has neither addressed this issue nor

foreclosed our determination that a substantial right created by statute exists and is

affected.

            {¶25} In In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d

886, the Ohio Supreme Court addressed whether it had jurisdiction to review a

children-services agency’s appeal of a judgment denying the agency’s motion to

modify temporary custody to permanent custody, but continuing temporary custody

with the agency. The children in that case, unlike the children in this case, had been

adjudicated neglected and abused upon the agency’s complaint and had already been




                                          10
                     OHIO FIRST DISTRICT COURT OF APPEALS



placed in the agency’s temporary custody as an initial disposition when the motion

for permanent custody was filed.

           {¶26} The Adams court held that the order denying permanent custody

but continuing temporary custody did not qualify as a final, appealable order under

either R.C. 2505.02(B)(1) or (2). The court’s analysis was based in part on the court’s

determination that the agency did not have a substantial right affected by the order

that merely continued temporary custody. After concluding that the order was not

final under R.C. 2505.02(B)(1) because it did not determine the action or prevent a

judgment, the court held that “[e]qually important to our determination of whether

an order is a final, appealable order under R.C. 2505.02(B)(1) and controlling in our

discussion of a final, appealable order under R.C. 2505.02(B)(2) is the fact that a

children-services agency does not have a substantial right in the permanent custody

of children based on the fact that the agency has temporary custody of the

children.” Adams at ¶ 42. It found that “no constitutional provision, statute, rule of

common law, or procedural rule entitles a children-services agency to any inherent

right to raise a child to adulthood. In contrast, a parent has a substantial right in

custody.” Adams at ¶ 43.

           {¶27} This comparison of a parent’s inherent and fundamental right to

raise a child to an agency’s lack of a reciprocal right was central to the Adams court’s

substantial-right analysis. The court used the comparison to explain its previous

holding in In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). The court in

Murray allowed a parent to appeal from a finding of neglect or dependency followed

by a dispositional order awarding temporary custody to a children-services agency,

because that order was not a final determination of the neglect or dependency action,

but did “determine[] the action” and was final and appealable as to the parents, who



                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



were deprived of the custody of their children as a result of the order and could not

later re-adjudicate the issues if the agency sought permanent custody. Murray at

158-161.    The Adams court explained that because the children-services agency

lacked any right, “inherent” or otherwise, “to raise a child to adulthood,” it lacked a

substantial right in the “permanent custody of children based on the fact that [it]

has temporary custody.” (Emphasis added.) See Adams at ¶ 42-43.

            {¶28} The Adams court noted also that the order in the case before it,

which did not finally determine the neglect and dependency action, required no

immediate appeal, because “the continuation of temporary custody does not

foreclose appropriate relief in the future” for the agency. Id. at ¶ 44. That discussion

echoed a prior statement by the court, that “[o]nce the neglect and dependency

action is determined, the agency or the parents can appeal the decision,” id. at ¶ 40,

and the court’s conclusion that “[w]hen the trial court enters its final order, all

parties whose substantial rights are affected by that order will be able to appeal.” Id.

at ¶ 46.

            {¶29} Importantly, our determination here, that the agency has a

substantial right, created by statute, to appeal the dismissal of the complaint where

that dismissal permanently ends the existing proceeding with respect to N.S. and

C.S., is not inconsistent with the Adams court’s holding that an order by the juvenile

court denying an agency’s motion for permanent custody, but continuing temporary

custody with the agency, does not “affect” any substantial right of the agency.

       {¶30} Role of the GAL. The dissent acknowledges that the agency does

have an interest in ensuring the welfare of the children by way of appeal, but takes

the position that this interest is protected by the children’s guardian ad litem. We

disagree.



                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶31} Certainly the GAL has a vital role in custody proceedings, including

permanent-custody proceedings. As the Supreme Court explained in In re C.B., 129

Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, the GAL’s statutory role in

permanent-custody proceedings includes “perform[ing] 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), quoted In re C.B. at ¶ 14.

       {¶32} C.B. involved in part whether a trial court order denying a children-

services agency’s motion to modify its temporary custody of a child to permanent

custody, terminating the placement of temporary custody with the agency, and

awarding legal custody to a parent was final and appealable. Id. The agency did not

appeal the order but the mother and the GAL did. The Eighth District Court of

Appeals dismissed the appeal for lack of a final appealable order on the authority of

In re Adams. The Ohio Supreme Court granted discretionary review to the GAL and

reversed. In determining that the order that ended the existing proceeding with

respect to the child was final and appealable, the C.B. court recognized the GAL’s

“statutory right to ensure that the best interests of the child are enforced and

protected in the permanent custody proceeding.” The court concluded that the order

affected a “substantial right” and could be appealed. Id. at ¶ 14-15.

       {¶33} A children-services agency such as HCJFS has a more direct and

extensive role in custody proceedings, including in this case the “right and duty to

protect” the children as their legal custodian. R.C. 2151.011(A)(21). And the fact that

the GAL and HCJFS both protect the child does not mean that HCJFS loses its right

to continue to protect the child on appeal.



                                            13
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶34} Further, the trial court is not required to appoint a GAL in every case

where the agency has filed a complaint for abuse, neglect, or dependency. See R.C.

R.C. 2151.281(B). For this reason, too, we conclude that the GAL is not able to

adequately protect the state’s interest in ensuring the welfare of the children.

       {¶35} App.R. 4(B)(5) applies. C.S. and N.S.’s siblings have not been

dismissed from the agency’s permanent-custody complaint, and there is no Civ.R.

54(B) certification. App.R. 4(B)(5) applies, however, when there has been an order

that affects a substantial right made in a special proceeding, but where there is no

Civ.R. 54(B) certification on the partial judgment.       See S Children I, 1st Dist.

Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961, ¶ 13. That appellate rule

permitted HCJFS to file its appeal within 30 days of the trial court’s partial judgment

or await the end of the case. See id. Accordingly, this court has jurisdiction to review

HCJFS’s appeal of the trial court’s partial judgment.

       {¶36} Assignments of error. We turn now to HCJFS’s two assignments

of error. Based on our decision in S Children I, we sustain the assignments of error

to the extent that HCJFS argues that the trial court erred in failing to apply R.C.

2151.04(C) when determining if C.S. and N.S. were dependent children, as alleged in

the amended complaint. The case must be remanded to the trial court for this

reason. In all other respects, HCJFS’s assignments of error are overruled.

                                       Conclusion

       {¶37} The trial court’s partial judgment dismissing N.S. and C.S. from

HCJFS’s complaint is final and appealable as to HCJFS under R.C. 2505.02(B)(2),

because it was made in a special proceeding and affects the substantial right of

HCJFS to intervene to protect those children, when it permanently deprived HCJFS

of the remedy to have the juvenile court adjudicate those children as abused,



                                           14
                    OHIO FIRST DISTRICT COURT OF APPEALS



neglected, or dependent based on the specifically alleged actions of their parents.

Consistent with our disposition in S Children I, we affirm the portion of the trial

court’s judgment determining that the state failed to prove by clear and convincing

evidence that C.S. and N.S. were abused or neglected, we reverse the trial court’s

holding that R.C. 2151.04(C) of the dependency statute did not apply, and we remand

with instructions to the trial court either to rule on the parents’ motion to dismiss

under R.C. 2151.04(C) or to take the motion under submission pending the

completion of the trial, and for further proceedings consistent with the law and this

opinion.

                                                              Judgment accordingly.
MYERS, J., concurs.
MILLER, J., dissents.

MILLER, Judge, dissenting.

       {¶38} I respectfully dissent from the majority’s opinion. While I understand

the desire to permit an agency to appeal a permanent-custody decision, In re Adams,

115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, disallows this appeal.

       {¶39} In Adams, the Ohio Supreme Court addressed whether it had

jurisdiction to review a children-services agency’s appeal of a judgment denying the

agency’s motion to modify temporary custody to permanent custody, and continuing

temporary custody. The court held that the judgment did not qualify as a final,

appealable order under either R.C. 2505.02(B)(1) or (2). Central to its analysis was

the court’s determination that the agency had not had a substantial right affected by

the judgment.     After concluding that the order was not final under R.C.

2505.02(B)(1) because it did not determine the action or prevent a judgment, the

court held that “[e]qually important to our determination of whether an order is a

final, appealable order under R.C. 2505.02(B)(1) and controlling in our discussion of



                                         15
                     OHIO FIRST DISTRICT COURT OF APPEALS



a final, appealable order under R.C. 2505.02(B)(2) is the fact that a children-services

agency does not have a substantial right in the permanent custody of children based

on the fact that the agency has temporary custody of the children.” Adams at ¶ 42.

This was because “no constitutional provision, statute, rule of common law, or

procedural rule entitles a children-services agency to any inherent right to raise a

child to adulthood. In contrast, a parent has a substantial right in custody.” Id. at ¶

43.   Thus, Adams stands for the proposition that, even where an agency has

temporary custody of a child, the agency does not have a substantial right in the

permanent custody of that child.

       {¶40} The majority relies, mistakenly in my view, on the statement in Adams

that “[o]nce the neglect and dependency action is determined, the agency or the

parents can appeal.”    Id. at ¶ 40. This statement pertains only to whether the

decision “determines the action.”      It is not relevant to the Supreme Court’s

conclusion that the agency had no substantial right affected. The court went out of

its way to say that only parties whose substantial rights are affected by the trial

court’s final judgment may appeal. Id. at ¶ 46.

       {¶41} For us to hold that the trial court’s order is “final” under R.C. 2505.02,

we would have to find that the trial court’s judgment affected a right—that is not the

right to permanent custody—that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles HCJFS to

protect. Adams bars us from finding that HCJFS had a substantial right affected

here. The majority concludes that the order ending its temporary custody impacted a

substantial right. While this is a tempting end-run around Adams, it runs counter to

the statutory scheme that is designed to enforce strict time limits on the length of

temporary-custody orders.



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       {¶42} The majority also relies on In re L.A., 2014-Ohio-894, 9 N.E.3d 525

(1st Dist.). In L.A., we held that HCJFS could appeal a trial court’s judgment that

denied its motion for permanent custody, but ordered HCJFS to investigate

placement options without awarding temporary or permanent custody to a specific

person or to HCJFS. Because the court’s order left the children in legal limbo,

without placement—let alone a safe and secure one—and because the court had

ordered HCJFS to investigate suitable placement options, we held that HCJFS had

had a substantial right affected by the judgment. We specifically limited our holding

to the “unique and specific circumstances” of that case.         L.A. at ¶ 7.    Those

circumstances do not exist here. In a case later that year, we applied Adams to

HCJFS’s appeal of a judgment denying its motion for permanent custody and

dismissed it for lack of a final order. See In re M.H., 1st Dist. Hamilton Nos. C-

130703 and C-130704, 2014-Ohio-1050 (J. Fischer).

       {¶43} The GAL’s role. Finally, HCJFS makes a policy argument, and a

compelling one at that. It contends that “[u]nless unequivocally mandated to do so,

this court should not diminish a voice for child welfare and safety by denying * * *

HCJFS an avenue for legal redress.”        Based on Adams, we are “unequivocally

mandated” to dismiss this appeal for lack of a final, appealable order.

       {¶44} However, the state’s interest in ensuring the welfare of children by way

of appeal is protected via the GAL. By statute, the trial court must appoint a GAL for

any child who is the subject of a permanent-custody proceeding. See R.C.

2151.281(B)(1). In In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398,

the Supreme Court surmised that “[b]ecause 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 * * * the guardian ad litem has a statutory right to



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ensure that the best interests of the child are enforced and protected in the

permanent-custody proceeding.” Id. at ¶ 14. The court held that this right was a

“substantial right” under R.C. 2505.02(A)(1) and allowed the GAL to appeal the trial

court’s denial of an agency’s motion for permanent custody. Id. at ¶ 14-15.

       {¶45} The state’s interests in ensuring the welfare of a child through the right

to appeal an adverse decision is vested in an agent who plays a “unique role” with

respect to protecting the best interests of that child.      Indeed, in the companion

appeals in this case, we decided the GAL’s and the children’s appeals on their merits.

       {¶46} Adams and C.B. appear to strike a balance that the state’s right to

appeal a permanent-custody decision—the family law equivalent of the death

penalty—belongs to the party charged with, above other matters, protecting the best

interests of the child. Perhaps this is to insulate the decision to appeal from the

agency or attorneys who lost in the trial court and to allow cooler heads to prevail.

       {¶47} HCJFS did not have a substantial right affected by the trial court’s

judgment dismissing its complaint for permanent custody of N.S. and C.S.

Therefore, there is no final order as to HCJFS under R.C. 2505.02, and the agency’s

appeal should be dismissed.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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