In re Young Children

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 632

.]




                               IN RE YOUNG CHILDREN.
                               IN RE BUNTING CHILDREN.
                                IN RE BROCK CHILDREN.
                                  IN RE FARRAR ET AL.
                   [Cite as In re Young Children, 

1996-Ohio-45

.]
Juvenile court—Passing of statutory time period pursuant to R.C. 2151.353(F)
        does not divest juvenile courts of jurisdiction to enter dispositional orders.
(Nos. 95-941, 95-942, 95-1213, 95-1510, 95-1526 and 95-1688—Submitted April
                         30, 1996—Decided October 9, 1996.)
The passing of the statutory time period (“sunset date”) pursuant to R.C. 2151.353
        (F) does not divest juvenile courts of jurisdiction to enter dispositional
        orders.
   APPEALS 94-CA-264 from and CERTIFIED by the Court of Appeals for Stark
               County, Nos. 94-CA-198, 94-CA-264 and 94-CA-227.
     APPEAL from the Court of Appeals for Guernsey County, No. 94-CA-20.
                                  __________________
                                  YOUNG CHILDREN
        {¶ 1} On September 21, 1992, the Stark County Department of Human
Services (“SCDHS”) filed complaint JU 80468 in the Stark County Juvenile Court
alleging that Ronald and Dominic Young were dependent and/or neglected
children. On that day, the court placed Ronald in the temporary custody of SCDHS.
SCDHS filed a new complaint, JU 81490, on January 8, 1993, based on the exact
facts of complaint JU 80468, alleging that Ronald and Dominic were dependent
and/or neglected children. On January 13, 1993, the court dismissed complaint JU
80468 and based on a finding of probable cause as to complaint JU 81490, granted
temporary custody of Ronald and Dominic to SCDHS.
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        {¶ 2} SCDHS filed an amended complaint on February 8, 1993 alleging that
Ronald had been sexually abused. Following a dispositional hearing held on April
7, 1993, the juvenile court granted temporary custody of Ronald and Dominic to
SCDHS based upon their parents’ prior stipulation that Ronald was an abused child
and that Dominic was a dependent child. SCDHS filed a motion to extend
temporary custody on December 8, 1993. The court granted the motion on January
3, 1994 and extended temporary custody until July 8, 1994.
        {¶ 3} On March 28, 1994, SCDHS filed a motion for permanent custody of
Ronald and Dominic. On May 5, 1994, Luella Young, the mother of Ronald and
Dominic, filed a motion to dismiss, claiming that the court lacked jurisdiction
because the children had been removed on September 21, 1992 and SCDHS had
not filed a motion to extend temporary custody prior to the sunset date prescribed
by R.C. 2151.415. The court overruled the motion finding that it had continuing
jurisdiction.
        {¶ 4} Upon the filing of an objection, the court held a hearing on July 5,
1994. At that time, the court determined that it retained jurisdiction over Dominic
and that it had lost jurisdiction over Ronald on September 21, 1993, pursuant to In
re White (Feb. 14, 1994), Stark App. No. CA-9461, unreported. Therefore, the
court dismissed Ronald’s case. The court of appeals affirmed this dismissal.
        {¶ 5} The cause is now before this court pursuant to the allowance of a
discretionary appeal (case No. 95-941), and finding its judgment in conflict with
decisions in the Second, Third, Sixth, Ninth and Twelfth Appellate Districts, the
court of appeals entered an order certifying a conflict. This court determined that
a conflict exists (case No. 95-942).




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                                January Term, 1996




                             BUNTING CHILDREN
       {¶ 6} Upon their parents’ stipulation to probable cause to the allegation that
they were dependent and/or neglected, the Stark County Juvenile Court placed
Shasta Bunting and Megan Bunting in the temporary custody of SCDHS on
February 24, 1992. SCDHS filed a first amended complaint, JU 78383, on March
19, 1992 alleging that the children lived in unsafe housing conditions and were
poorly supervised, in addition to being dependent and/or neglected. On May 26,
1992, SCDHS filed a new complaint, JU 79440, alleging the same facts as
complaint JU 78383. At that time the court issued an order granting temporary
custody to SCDHS. The first amended complaint, JU 78383, was dismissed on
June 4, 1992 because the juvenile court could not hear the complaint within the
ninety-day time period prescribed in R.C. 2151.35(B)(1).
       {¶ 7} Complaint JU 79440 reached adjudication on August 20, 1992 at
which time the court awarded custody to SCDHS. SCDHS filed a motion for
permanent custody on February 9, 1993 and amended it on June 1, 1993 as a motion
to extend temporary custody. The court granted the latter motion upon agreement
of the parents.
       {¶ 8} SCDHS filed a motion for permanent custody on October 25, 1993.
Ramona Martin ( the mother of Shasta and Megan) relinquished her parental rights
on April 18, 1994. The court granted permanent custody of Shasta and Megan to
SCDHS on August 1, 1994. On May 15, 1995, the court of appeals reversed the
grant of custody based on its finding that the trial court lacked subject matter
jurisdiction pursuant to In re White, supra.
       {¶ 9} The cause is now before this court pursuant to the allowance of a
discretionary appeal. (Case No. 95-1213.)
                              FARRAR CHILDREN
       {¶ 10} On September 27, 1991, Guernsey County Children Services Board
(“GCCSB”) filed a complaint in the Guernsey County Juvenile Court alleging that




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Julie Farrar, Ron Farrar, Jr., and Amanda Welker were neglected and/or dependent
children. On October 18, 1991, the court granted a predispositional interim custody
order and granted protective supervision to GCCSB. On November 21, 1991, the
court adjudicated the children to be neglected. At that time, the court returned
custody of Ron and Amanda to their mother. Julie had been and remained in the
custody of Norma Berg.
       {¶ 11} On January 29, 1992, the court granted a predispositional order of
temporary custody of Ron to Charlie and Lisa Berg and of Amanda to Ed Welker,
her maternal grandfather. On February 25, 1992, the court found Ron and Amanda
to be dependent and neglected children. On September 22, 1992, because of
problems in both Berg households, the court awarded temporary custody of Ron
and Julie to GCCSB. The court also awarded legal custody of Amanda to Ed
Welker.
       {¶ 12} On May 10, 1993, GCCSB filed a motion to modify the temporary
commitment to permanent commitment based on the parents’ lack of compliance
with the case plan. On February 9, 1994, after several continuances, the court
granted permanent custody of Julie and Ron to GCCSB. On June 23, 1995, the
court of appeals reversed, based on its finding that the trial court lacked subject
matter jurisdiction pursuant to In re White, supra, and dismissed the trial court’s
grant of permanent custody to GCCSB.
       {¶ 13} The cause is now before this court pursuant to the allowance of a
discretionary appeal. (Case No. 95-1526.)
                              BROCK CHILDREN
       {¶ 14} On December 26, 1991, SCDHS filed complaint JU 77685 in the
Stark County Juvenile Court alleging that Keisha Brock, Sade Brock, and David
Brock were neglected children. Following an adjudicatory hearing on January 24,
1992, the court granted temporary custody of Keisha, Sade, and David to SCDHS.
The court placed the children with their mother. SCDHS filed a new complaint, JU




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81572, on January 14, 1993, alleging that the children were neglected and/or
dependent. At an emergency shelter hearing on January 15, 1993, the court
awarded temporary custody of the Brock children to SCDHS.
       {¶ 15} On February 9, 1993, the court held an adjudicatory hearing on
complaint JU 81572 at which the children were found dependent. At a dispositional
hearing that same day, the court placed the children in the temporary custody of
SCDHS. Complaint JU 77685 was dismissed on February 18, 1993.
       {¶ 16} SCDHS filed a motion for permanent custody on December 10,
1993. This motion was not heard until May 9, 1994 because of difficulty serving
the parents and the parents’ failure to appear at the first scheduled hearing. The
court granted permanent custody of the children to SCDHS on July 6, 1994. On
June 29, 1995, the court of appeals reversed and remanded with orders to dismiss
the case pursuant to In re White, supra.
       {¶ 17} The cause is now before this court pursuant to the allowance of a
discretionary appeal (case No. 95-1510), and, finding its judgment in conflict with
decisions in the Second, Third, Sixth, Ninth, and Twelfth Appellate Districts, the
court of appeals entered an order certifying a conflict. This court determined that
a conflict exists (case No. 95-1688).
                              __________________
       Darlene Odar, for appellee Louella Young, mother of Ronald Young.
       Donald Ramsayer, for appellee Ronald Young, Sr., father of Ronald Young.
       John Mackey, for appellee Paul Bunting, father of the Bunting Children.
       Charles E. McKnight, for appellee Debbie Farrar, mother of the Farrar
children.
       Oberholtzer & Oberholtzer and Mattheuw W. Oberholtzer, for appellee
       Vivian Brock, mother of the Brock children.
       Linda Shields-Stiefel, for appellee David Brock, father of the Brock
children.




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         Paula M. Sawyers and Edith M. Hough, for appellant Stark County
Department of Human Services.
         Josephine E. Hayes, for appellant Guernsey County Children Services
Board.
         Kathleen O. Tatarsky, for amicus curiae Stark County Children’s Services
and Advisory Council, in case No. 95-941.
                               __________________
              PFEIFER, J.
         {¶ 18} We are asked in these consolidated cases to consider whether a
juvenile court loses jurisdiction to enter dispositional orders upon expiration of the
statutory time period (the “sunset date”) pursuant to R.C. 2151.353 (F). The
certified question is: “Are the provisions of R.C. 2151.415(D) jurisdictional in
nature, such that a trial court loses jurisdiction to enter custody orders after
expiration of the statutory time period?” We answer the question in the negative
and for the reasons that follow, we find that a juvenile court does not lose
jurisdiction of a matter upon the passing of the sunset date and that a judge may
enter an order of disposition pursuant to R.C. 2151.415 (A) after the sunset date
when the problems that led to the original temporary custody order remain
unresolved.
         {¶ 19} R.C. 2151.353 (F) states in pertinent part: “Any temporary custody
order issued pursuant to division (A) of this section shall terminate one year after
the earlier of the date on which the complaint in the case was filed or the child was
first placed into shelter care, except that, upon the filing of a motion pursuant to
section 2151.415 of the Revised Code, the temporary custody order shall continue
and not terminate until the court issues a dispositional order under that section.”
         {¶ 20} R.C. 2151.415 (A) states in pertinent part: “Any public children
services agency or private child placing agency that has been given temporary
custody of a child pursuant to section 2151.353 of the Revised Code, not later than




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                                 January Term, 1996




thirty days prior to the earlier of the date for the termination of the custody order
pursuant to division (F) of section 2151.353 of the Revised Code or the date set at
the dispositional hearing for the hearing to be held pursuant to this section, shall
file a motion with the court that issued the order of disposition requesting that any
of the following orders of disposition of the child be issued by the court:
        “(1) An order that the child be returned to his home and the custody of his
parents, guardian, or custodian without any restrictions;
        “(2) An order for protective supervision;
        “(3) An order that the child be placed in the legal custody of a relative or
other interested individual;
        “(4) An order permanently terminating the parental rights of the child’s
parents;
        “(5) An order that the child be placed in long-term foster care;
        “(6) In accordance with division (D) of this section, an order for the
extension of temporary custody.”
        {¶ 21} Temporary custody is terminated upon the passing of the sunset date,
when no motion is filed pursuant to R.C. 2151.415 (A). However, the issue before
us, what happens to the court’s jurisdiction upon the passing of the sunset date, is
not clear. Accordingly, we look elsewhere in the Revised Code to determine the
jurisdiction of a court in situations like the ones before us. In doing so, we are
guided by R.C. 2151.01(A), which states in pertinent part that Chapter 2151 of the
Revised Code is to be “liberally interpreted and construed so as to effectuate ***
the care, protection, and mental and physical development of children subject to
Chapter 2151. of the Revised Code.” See, also, Kurtz & Giannelli, Ohio Juvenile
Law (2 Ed. 1989) 167, Section 13.01.
        {¶ 22} R.C. 2151.353 (E)(1) provides in pertinent part that “[t]he court shall
retain jurisdiction over any child for whom the court issues an order of disposition
pursuant to division (A) of this section *** until the child attains the age of eighteen




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*** or the child is adopted.” It seems abundantly clear that this provision was
intended to ensure that a child’s welfare would always be subject to court review.
That is, given that a child, by virtue of being before the court pursuant to R.C.
Chapter 2151, was at risk of some harm, the General Assembly provided for the
child’s safety and welfare by ensuring that the juvenile court would retain
jurisdiction over the child through the age of majority. R.C. Chapter 2151 places
no limitation on this general jurisdiction.
       {¶ 23} At the risk of oversimplifying the issue before us, we believe that
R.C. 2151.353 is dispositive. Accordingly, we hold that the passing of the sunset
date pursuant to R.C. 2151.353(F) does not divest juvenile courts of jurisdiction to
enter dispositional orders.
       {¶ 24} That juvenile courts have continuing jurisdiction does not mean that
public children services agencies or private child-placing agencies can ignore the
mandates of the statute and rely on the court to save them from their own failures
or oversights. Neither does it mean that courts can grant dispositional orders
indiscriminately. The obligation to file a motion thirty days prior to the sunset date
is not vitiated and the failure to file is not harmless error. See Endsley v. Endsley
(1993), 

89 Ohio App.3d 306

, 

624 N.E.2d 270

. Accordingly, although the court
has continuing jurisdiction, temporary custody terminates when the sunset date
passes without a filing pursuant to R.C. 2151.415 (A). However, because the court
retains jurisdiction over the child, it may make further dispositional orders as it
deems necessary to protect the child. We believe the General Assembly granted
continuing jurisdiction to the courts for just this reason.
       {¶ 25} This holding allows the juvenile court to assess each situation on its
merits and does not mandate the return of children to a situation from which they
originally needed protection solely because the agency charged with their care
missed a filing deadline. Thus, we hold that when the sunset date has passed
without a filing pursuant to R.C. 2151.415 and the problems that led to the original




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                                January Term, 1996




grant of temporary custody have not been resolved or sufficiently mitigated, courts
have the discretion to make a dispositional order in the best interests of the child.
Where the original problems have been resolved or sufficiently mitigated, courts
may not make further dispositional orders based on the original complaint.
       {¶ 26} We now address the issue of refiling. Presently, some agencies are
resorting, as the facts of the cases before us suggest, to filing new complaints,
alleging the same facts as in a previous complaint, to prevent the passing of the
sunset date. The agencies do so with the best of intentions in order to protect
children.    Nevertheless the practice unnecessarily clutters the courts with
essentially redundant casework.        Our holding should eliminate the perceived
necessity for these redundant filings.
       {¶ 27} Further, when a new complaint is filed based on past facts discovered
subsequent to the original complaint or subsequent facts, we find that the new
complaint established its own sunset date because it is not a mere refiling. This
sunset date does not affect and is not controlled by previously filed complaints or
previously established sunset dates.
       {¶ 28} We now turn to the application of our holding to the specific facts
before us.
                               YOUNG CHILDREN
       {¶ 29} We reverse the court’s dismissal of Ronald Young’s case. Though
the sunset date had passed as to the original complaint filed on September 21, 1992,
the complaint filed on February 8, 1993 alleging sexual abuse established its own
sunset date because it was based on facts learned subsequent to the filing of the
original complaint. Thus, the motion for an extension of temporary custody filed
on December 8, 1993 was filed prior to the sunset date.
       {¶ 30} However, the motion for permanent custody was not filed prior to
the sunset date as required by R.C. 2151.415 (B). Accordingly, temporary custody
was terminated on July 8, 1994, the date through which the court properly extended




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temporary custody. Even so, the juvenile court retains jurisdiction over the matter
pursuant to our holding today.
       {¶ 31} Accordingly, we reverse the dismissal of this case and remand to the
trial court for further proceedings to determine whether the problems that led to the
filing of the February 8, 1993 complaint had been resolved or sufficiently mitigated
as of July 8, 1994, when the extended temporary custody order would have
otherwise terminated. If these problems had been resolved or mitigated, the court
should terminate the temporary custody order and release the child to his mother.
If they had not, the court has discretion to make a further dispositional order
pursuant to R.C. 2151.415 and our holding above.
                             BUNTING CHILDREN
       {¶ 32} The motion for permanent custody of Shasta Bunting and Megan
Bunting was filed on February 9, 1993, after the passing of the sunset date. Even
so, the court retains jurisdiction over the matter pursuant to our holding today.
Accordingly, we reverse the dismissal of this case and remand to the trial court for
further proceedings to determine whether the problems that led Shasta and Megan
to be taken into temporary custody had been resolved or sufficiently mitigated as
of February 24, 1993, when the temporary custody order would have otherwise
terminated. If these problems had been resolved or mitigated, the court should
terminate the temporary custody order and release the children to their mother. If
they had not, the court has discretion to make a further dispositional order pursuant
to R.C. 2151.415 and our holding above.
                              FARRAR CHILDREN
       {¶ 33} The temporary custody orders in this case terminated on September
27, 1992 because there was no filing pursuant to R.C. 2151.415 prior to the sunset
date. Even so, the trial court retains jurisdiction over the matter pursuant to our
holding today. Accordingly, we reverse the dismissal of this case and remand to
the trial court for further proceedings consistent with this opinion to determine




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whether the problems that led to the original grant of temporary custody had been
resolved or sufficiently mitigated as of September 27, 1992 when the temporary
custody order would have otherwise terminated. If these problems had been
resolved or mitigated, the court should terminate the temporary custody order and
release the children to their mother. If they had not, the court has discretion to make
a further dispositional order pursuant to R.C. 2151.415 and our holding above.
                                BROCK CHILDREN
       {¶ 34} The original complaint in this case established a sunset date of
December 26, 1992. A new complaint, alleging different facts was filed on January
14, 1993.    This complaint established its own sunset date.            The motion for
permanent custody was filed prior to the sunset date established by the January 14,
1993 complaint. Accordingly, we reverse the dismissal of this case and remand to
the trial court for further proceedings consistent with this opinion.
                                                                  Judgments reversed
                                                               and causes remanded.
       RESNICK, F.E. SWEENEY and STRATTON, JJ., concur.
       MOYER, C.J., DOUGLAS and COOK, JJ., concur in the syllabus and concur in
part and dissent in part in judgment.
                               __________________
       COOK, J., concurring in the syllabus and concurring in part and
dissenting in part in judgment.
       {¶ 35} Although I concur in the syllabus of the majority’s opinion, my
analysis differs and leads to different dispositions of the four cases.
       {¶ 36} Like the majority, I believe that the passing of the sunset date found
in R.C. 2151.353(F) does not divest the juvenile court of jurisdiction to enter a
dispositional order. That division only causes an order of temporary custody to
lapse. R.C. 2151.353(E)(1) continues jurisdiction in a juvenile court over any child
for whom the court has issued a dispositional order until that child reaches the age




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of majority. I believe that is as far as the majority needed to go to dispose of these
cases.
         {¶ 37} Instead, the majority conditions a court’s ability to issue further
dispositional orders on whether or not the problems leading to the filing of the
original complaint exist as of the sunset date. This approach is not in the statutory
scheme or in the case law and thus there is no basis for imposing such a condition.
         {¶ 38} In three of the four cases presently before this court, the juvenile
courts issued permanent custody orders. In the fourth case, the juvenile court
refused to entertain a permanent custody motion on its conclusion that the passing
of the sunset date had divested it of jurisdiction. Assuming that the permanent
custody orders are supported by the appropriate considerations as they existed at
the time of the permanent custody hearings, there is no reason to reverse those
orders. The Bunting, Farrar and Brock courts’ continuing jurisdiction authorized
the issuance of permanent custody orders. R.C. 2151.415(E)(1). The Young court’s
continuing jurisdiction authorizes it to rule upon the permanent custody motion. 

Id.

         {¶ 39} It is critical that we give effect to the statutory design for placement
of children who are adjudicated abused, neglected or dependent. The statute places
a burden on the court to keep tabs as a child progresses toward return to the family
home or an alternative permanent living arrangement. It also limits the time that a
child’s future may be left in limbo. Nevertheless, a temporary order that is
permitted to lapse under R.C. 2151.353(F) does not mandate the child’s return to
the family home. After an adjudication that the child is abused, neglected or
dependent and the issuance of a dispositional order, all further placements must be
court-ordered. If temporary custody is permitted to lapse, and a child’s parents
believe that they are entitled to have the child returned to the family home, they can
file a motion pursuant to R.C. 2151.415(F), requesting the court to issue the
appropriate order. None of the parties to this appeal exercised that option. The




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juvenile courts’ continuing jurisdiction now authorizes them to rule on the
permanent custody motions.
       {¶ 40} Accordingly, I would reverse Bunting, Farrar and Brock and return
the cases to the appellate courts for review of the assignments of error which were
found to be moot. I would reverse Young and remand the case to the trial court to
conduct a hearing on the permanent custody motion.
       {¶ 41} In addition, I also note my respectful disagreement with the
majority’s treatment of successive complaints concerning the same child. The
majority concludes that where the latter complaint alleges new facts, or facts not
disclosed in the original complaint, a new sunset date is given effect and the old
one is erased. It is only when the original and new complaints are based on the
same facts that the sunset date is calculated from the original complaint.
Application of the statute in this manner thwarts the fundamental purpose behind
the legislature’s limitation upon grants of temporary custody.
       {¶ 42} Orders of temporary custody are limited so that children do not
linger in housing arrangements that were never intended to be permanent. The
limitation is not so much for the benefit of the parent as it is for the benefit of the
child. Evidence of this fact is supplied by R.C. 2151.415(D)(1), which conditions
an extension of temporary custody on a demonstration by clear and convincing
evidence that there has been significant progress on the child’s case plan and that
the child will be reunified with one of his parents within the period of extension.
Moreover, children in temporary custody whose return to the family home is neither
imminent nor desirable are to receive case plans designed to develop and implement
an alternative permanent living arrangement. R.C. 2151.412(F)(1)(b)(ii).
       {¶ 43} A second complaint based on new facts would tend to demonstrate
that a parent is not making progress with the case plan and return to the family
home is not imminent. Accordingly, it is no reason to justify prolonging temporary




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custody. The same can be said for a complaint based on new allegations of past
conduct. Nevertheless, that is the result under the majority opinion.
       {¶ 44} In formulating the statutory scheme related to the placement of
abused, neglected and dependent children, the legislature built in safeguards to
ensure that children are not forgotten after being placed in temporary custody. A
juvenile court is required to hold a review hearing one year after the earlier of the
filing of a complaint or placement of the child into shelter care. R.C. 2151.415(B);
2151.417(C). Such hearing is to be scheduled upon completion of the court’s
dispositional hearing held pursuant to R.C. 2151.35. R.C. 2151.35(B)(3).
Accordingly, a child’s dispositional order should not be permitted to lapse.
       {¶ 45} Because the trial courts below were confounded by the filing of
amended and second complaints, timely action was not taken in making or
extending the appropriate dispositional order. This confusion would be eliminated
by construing R.C. 2151.353(F) to require calculation of the sunset date to run from
the earlier date of the child’s placement in shelter care or the filing of the original
complaint. If later filed complaints are not permitted to reset the sunset date, the
situation presented in the present case is unlikely to recur.
       MOYER, C.J., and DOUGLAS, J., concur in the foregoing opinion.
                               __________________




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