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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

NEGLECTED, DEPENDENT AND ABUSED CHILDREN (166)

Also see Juveniles; Juvenile Procedure; Guardians ad Litem.

 

In general

Neglect

Dependency

Abuse

Jurisdiction

Parties; Intervention

Representation issues

Notice and attendance issues

Guardian ad litem

Evidentiary issues - adjudication

Time constraints

Disposition issues

Planned Permanent Living Arrangements

Permanent commitment - complaints

Permanent commitment - consent or acquiescence

Permanent commitment, procedural issues

Permanent commitment, determination on the merits generally

Permanent commitment - case plan compliance

Permanent commitment - impairment

Permanent commitment - abandonment

Permanent commitment - best interests and maturity issues

Appellate review generally

Appellate review - permanent commitment cases

Further proceedings on remand

Post-adjudication custody motions

Other issues

 

R.C. 2151.03 -- Neglected child defined; failure to provide medical care for religious reasons.

R.C. 2151.031 -- Abused child defined.

R.C. 2151.04 -- Dependent child defined.

R.C. 2151.05 -- Child without adequate parental care.

R.C. 2151.353 -- Disposition of abused, neglected or dependent child.

R.C. 2151.412 -- Case plan for each child; changes; priorities.

R.C. 2151.413 -- Agency may file motion requesting permanent custody.

R.C. 2151.414 -- Hearing on motion for permanent custody; notice; determinations necessary for granting

motion.

In general

O‘Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574 – Paragraph one of the syllabus: "A public children‘s services agency and its employees, upon receipt of a case referral, do not have a duty under R.C. 2151.421(A)(1)(a) to cross-report the case to a law-enforcement agency and are immune from liability for failing to do so."

In re A.G.B., 173 Ohio App. 3d 263, 2007-Ohio-4753 – Parents were divorced. Instead of seeking a modification of custody within the domestic relations case, which would require proof of changed circumstances, the father filed an abuse-neglect-dependency complaint. Children Services was not involved. Reversed, as the court was required to appoint a guardian ad litem, notwithstanding the mother‘s failure to object in the trial court. Dissent believes Chapter 2151 does not apply to private custody disputes.

In re Baby Boy Doe, 145 Ohio Misc. 2d 1, 2007-Ohio-7244 – Trial court determines Ohio‘s deserted child law (R.C. 2151.3515-2151.3530) is invalid because its notice provisions, which are procedural, are at odds with rules adopted by the Supreme Court, which take precedence.

In re R.A., 172 Ohio App. 3d 53, 2007-Ohio-2997 -- In what appears to be a battle between counties to avoid expenses of providing for dependent children, the last county on the hook can't wiggle off citing the sunset provision applicable to temporary custody orders. After giving appellant Mercer County the win, the court rules against it on its claim regarding intervention in Van Wert County proceedings.

In re L.W., 168 Ohio App. 3d 613, 2006-Ohio-644 -- The child who was the subject of neglect and dependency hearing died during the objections process. The action is moot. The subject matter of the action, custody, was abated. The capable of repetition evading review exception does not apply since the repetition aspect is too speculative. Nor does the debatable constitutional question exception apply.

In re C.R., 108 Ohio St. 3d 369, 2006-Ohio-1191 -- Case involves competing motions for custody of a neglected child by the father and two sets of relatives. (1) At ¶6: Trial court is strongly criticized for extending three days of hearings over a two month period, citing Code of Judicial Conduct, Canon 3(B)(8). (2) The court distances neglect, dependency and abuse proceedings from the parental unfitness rule of In re Perales (1977), 52 Ohio St. 3d 89. Syllabus: "(1) An award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities. (2) A juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents. (3) When a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty to make separate findings at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal custody to a nonparent."

In re James, 163 Ohio App. 3d 442, 2005-Ohio-4847 -- (1) At ¶19: "...(W)e hold that when a nonparent has nonpermanent custody of a child, the requirement in R.C. 3109.04(E)(1)(a) that the child's parent must demonstrate a change in circumstances for either the child or the nonparent in order for the court to modify custody is unconstitutional." (2) At ¶28-41: The court did not abuse its discretion by denying the grandparent's motion for the appointment of a guardian ad litem for the child late in proceedings, following the submission of a report by an independent custody investigator favoring the award of custody to the parents.

In re McDaniel, Lake App. Nos. 2002-L-158, 159, 2004-Ohio-2595 -- No abuse of discretion in refusing foster parents' motion to intervene. Foster parents do not have a constitutionally protected interest in proceedings concerning the foster child. At ¶41: Although participation may be warranted in some cases, when the issue is deprivation of parental rights, the foster parents' interest in preventing the return of the child to the parent in order to further their own desire for adoption is too predictable to left the addition of the foster parents as parties."

In re McBride, 111 Ohio St. 3d 19, 2006-Ohio-3454 -- Syllabus: "A parent who has lost permanent custody of a child does not have standing as a nonparent to file a petition for custody of that child. (R.C. 2151.414(F) and 2151.353(E)(2), applied.) Reverses In re McBride, 158 Ohio App. 3d 572, 2004-Ohio-5269

In re Byerly, Portage App. Nos. 2001-P-0158, 2004-Ohio-523 -- To have standing on appeal, a substantial right of a party must be affected. Though the motion leading to the hearing was dismissed, the magistrate changed orders controlling visitation, thus affecting a substantial right. Appellant was denied right to be heard through cross-examination and by calling witnesses. The court also erred by refusing to allow a proffer and by refusing to allow deposition of an expert.

In re Don B., Huron App. No. H-02-033, 2003-Ohio-1400 -- Cuyahoga County child was placed in a Huron County foster home where he was sexually abused. Huron county resisted return of child to Cuyahoga County because of slow progress towards adjudication there. Held that child remains within the jurisdiction of Cuyahoga County where his parents apparently continued to live.

In re Olah (2000), 142 Ohio App. 3d 176 -- Failure to conduct a dispositional hearing within 90 days of the filing of the complaint requires dismissal without prejudice. Dissent would find implicit waiver of the time limit.

Ross v. Saros, 99 Ohio St. 3d 412, 2003-Ohio-4128 -- Mother who claimed to have missed termination of parental rights hearing because of lack of notice brought a habeas action. Held that she had an adequate remedy at law in the form of a previous unsuccessful appeal. Also held she would not necessarily have been entitled to release as it would not have been in the child's best interest to release him to a crack head who had stopped visiting.

In re Spangler, 162 Ohio App. 3d 83, 2005-Ohio-3441 -- Active efforts by caseworkers to encourage mother to divorce her abusive husband violated the public policy against interference in a marriage. But there had been no objection to the stay-away aspect of the case plan and the ultimate decision to terminate parental rights was supported by the evidence.

In re T.R. (1990), 53 Ohio St. 3d 6 -- Paragraph three of the syllabus: "Proceedings in juvenile court to determine if a child is abused, neglected, or dependent, or to determine custody of a minor child, are neither presumptively open nor presumptively closed to the public. The juvenile court may restrict public access to these proceedings pursuant to Juv. R. 27 and R.C. 2151.35 if the court finds, after hearing evidence and argument on the issue, (1) that there exists a reasonable and substantial basis for believing that public access could harm the child or endanger the fairness of the adjudication, and (2) the potential for harm outweighs the benefits of public access." Also see State ex rel Dispatch Printing Co. v. Lias (1994), 68 Ohio St. 3d 497 (when and how closure hearing may itself be closed); In re D.R. (1993), 63 Ohio Misc. 2d 273; In re Joanne M. (1995), 103 Ohio App. 3d 447 (summary denial of child welfare agency's motion for closure, without an evidentiary hearing, was erroneous).

In re Poling (1992), 64 Ohio St. 3d 211 -- Syllabus: "(1) Pursuant to R.C. 2151.23(A), the juvenile court has jurisdiction to determine the custody of a child alleged to be abused, neglected or dependent, when that child is not the ward of any court in this state. This jurisdiction includes children subject to a divorce decree granting custody pursuant to R.C. 3109.04. (2) When a juvenile court makes a custody determination under R.C. 2151.23 and 2151.353, it must do so in accordance with R.C. 3109.04. (R.C. 2151.23[F][1], construed and applied.)" See fn. 3 at p. 218.

In re Young Children (1996), 76 Ohio St. 3d 632 -- Syllabus: "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." Temporary custody order ends, but court's jurisdiction to put on a new order does not. Agencies do not need to file new complaints alleging same facts to maintain intervention.

State ex rel. Asberry v. Payne (1998) 82 Ohio St. 44 -- Maternal grandmother petitioning a juvenile court for custody had the right to have counsel appointed to represent her pursuant to Chapter 120 of the Revised Code. R.C. 2151.353 entitles all indigent parties in juvenile proceedings to appointed counsel, and this is not limited by reference in R.C. 120.06 to representation in prosecutions which could result in the loss of liberty. Also see McKinney v. McClure (1995), 102 Ohio App. 3d 165.

Davis v. Trumbull County Children Services Board (1985), 24 Ohio App. 3d 180 -- (1) A guardian ad litem is required in neglect and abuse cases, but not in dependency proceedings. (2) An agency report containing social history information is hearsay and may not be admitted to prove allegations in a dependency complaint. (3) An agency may not seize a person's child and then be the sole judge of how much evidence as to agency conduct it will divulge.

In re Burchfield (1988), 51 Ohio App. 3d 148, 154 -- The Confrontation Clause of the Sixth Amendment does not apply to civil proceedings, including dependency and neglect cases. However, the fundamental right of parents to raise their children is protected by due process. See Stanley v. Illinois (1972), 405 U.S. 645; State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6.

In re Billman (1993), 92 Ohio App. 3d 279 -- Juvenile Court dependency finding reversed and remanded where parent had been compelled to testify despite asserting her Fifth Amendment privilege.

In re Murray (1990), 52 Ohio St. 3d 155 -- An adjudication that a child is neglected or dependent, accompanied by a disposition awarding temporary custody to a children services agency is a final appealable order.

McNeal v. Miami County Children Services Board (1992), 64 Ohio St. 3d 208 -- In very limited circumstances involving child custody, where time is of the essence, habeas corpus may be an alternative to appeal (but not in this case). For a case where habeas was allowed to proceed see Marich v. Knox County Dept. of Human Services (1989), 45 Ohio St. 3d 163.

In re Bacorn (1996), 116 Ohio App. 3d 489 -- (1) At. p. 496: "..(W)e hold as a matter of law, that in order for a court to rely upon R.C. 2151.415(C)(1)(c) when ordering long-term foster care, the child at issue must be sixteen at the time she was counselled, as well as at the time she expressed her opinion regarding the disposition, and at the time of the hearing." (2) Though court's findings may have been supported by the evidence as a whole, they were not supported by the specific testimony referred to. Appellate court will not second guess why trial court did not rely on other evidence.

In re Franklin (1993), 88 Ohio App. 3d 277 -- Foster parents wished to become parties in voluntary surrender of parental rights proceeding, but did not file a motion seeking custody or ask to be made parties until after dispositional order had been entered. Held: (1) that the court did not abuse its discretion in refusing to reconsider its prior dispositional order pursuant to R.C. 2151.417(A). (2) Pursuant to Juv. R. 2(16) they could be made parties at the discretion of the court, but were not entitled to become parties.

In re Ring (June 28, 1994) Franklin Co. App. No. 93APF12-1693, unreported (1994 Opinions 3001) -- Determination whether former foster parents should be allowed to intervene and seek visitation and custody following permanent commitment, should be guided by Civil Rule 24. There is no right to intervene and permissive intervention rests within the sound discretion of the court. Also see In re Deleon (December 22, 1994), Franklin Co. App. No. 94APF05-763, unreported (1994 Opinions 6008) reaching the same conclusion as to grandparents.

In re Carroll (1997), 124 Ohio App. 3d 51 -- When children entered protective supervision, there was no limit placed on the number of extensions. Court holds subsequent amendment of R.C. 2151.353(G) limiting such extensions may not be applied retroactively.

In re Collier (1993), 85 Ohio App. 3d 232 -- Analyzing R.C. 2151.353(G), court concludes children services agency was not precluded from applying for a second extension of a protective services order.

In re Kost (January 27, 1994), Franklin Co. App. No. 93AP-683, unreported (1994 Opinions 193) -- In response to the claim that the trial court could not extend a temporary custody order beyond the one year limitation imposed by R.C. 2151.353(F), court construes action of the trial court as a new dispositional order, entered in accordance with the court's continuing jurisdiction.

In re Sims (1983), 13 Ohio App. 3d 37 -- (1) By not contesting the allegations in a complaint, a party does not waive his or her right to participate in the proceedings. (2) A causal link must be shown between the fault or habit of the parent and the neglected condition of the child.

In re Dukes (1991), 81 Ohio App. 3d 145 -- (1) At p. 150: Defects in the complaint must be raised by pre-hearing motion, filed in a timely manner. See Juv. R. 22. (2) At pp. 151-152: Court limits confrontation clause rights enunciated in Idaho v. Wright (1990), 497 U.S. 805 to criminal cases. Testimony in question held otherwise admissible under exceptions to the hearsay rule.

In re Pryor (1993), 86 Ohio App. 3d 327 -- (1) After discussion of custody awards in divorces and juvenile court proceedings, at pp. 334-335: "In sum, the Boyer, Perales and Thrasher decisions all affirm that the best interest of the child remains the primary standard to be applied in custody cases. Nevertheless, while the welfare of the child is the primary consideration, suitable parents have a paramount right to custody...Before divesting a parent of this right and awarding custody to a nonparent, the court must determine whether a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child or that the award of custody to the parent would be detrimental to the child." (2) At p. 336: There is no requirement that the factors enumerated in R.C. 3109.04(F) be considered in an award of custody under R.C. 2151.353(A)(3). (3) At pp. 338-339 the court questions whether a parent has standing to challenge the effectiveness of a guardian ad litem.

In re Sarah H. (1993), 86 Ohio App. 3d 455 -- It was an abuse of discretion for the juvenile court to order a father to undergo therapy as a sex offender as a condition of continued visitation with his daughter, absent a finding that he was responsible for any abuse.

In re Simons (1997), 118 Ohio App. 3d 622 -- Couple lived in Kentucky during marriage. Wife filed for divorce there, then moved to Ohio to live with her mother. Seeking to remove custody issue from the divorce action, mother's mother filed a complaint alleging child of the marriage was abused and sought custody. Held Ohio judge acted within his discretion under the Uniform Child Custody Jurisdiction Act in declining to exercise jurisdiction. Further held Ohio judge properly communicated ex parte with judge in Kentucky concerning status of the case.

State v. Tyren (1998), 91 Ohio Misc. 2d 67 -- Negotiations to resolve an abuse and dependency matter required defendant to undergo sex offender treatment. Admissions made during therapy led to an indictment, which the court dismisses to serve the interests of justice.

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Neglect

In re Zeiser (1999), 133 Ohio App. 3d 338 -- Six and eight year olds were left alone on a regular basis. All indications were that they were mature for their age and had not encountered or created any situations posing an actual risk. Neglect finding affirmed. See dissent.

In re Johnson (Mach 22, 2001), Franklin Co. App. No. 00AP-691, unreported -- A child may not be found dependent or neglected when a parent enters into a voluntary arrangement to have the child cared for by relatives, and the care thus furnished is adequate.

In re Riddle (1997), 79 Ohio St. 3d 259 -- Child was placed with grandparents through an agency mediated agreement, precipitated by parents' transient lifestyles. Such an arrangement made by a parent would usually forestall claims of neglect, though a distinction may be drawn when placement is arranged by agency. Dependency might have been the more appropriate finding.

In re Fetters (1996), 110 Ohio App. 3d 483 -- Parents filed neglect action against agency and foster parent based on improper attendance to child's medical problems. Court erroneously dismissed complaint for citing the dependency statute instead of the neglect statute.

In re Wall (1989), 60 Ohio App. 3d 6 -- (1) Burden of proof rests on complaining child welfare agency by clear and convincing evidence. (2) Minor bruises caused when child resisted changing clothing did not establish neglect.

In re Reese (February 23, 1982), Franklin Co. Case No. 81AP-739 (1982 Opinions 298) -- A child is not neglected if, regardless of the faults and habits of its parents, it is receiving adequate care from a relative.

In re Gutman (1969), 22 Ohio App. 2d 125 -- Headnote 1: "A Juvenile Court cannot deprive the mother of an adulterine bastard of the custody of such child, in the absence of evidence to warrant a finding that such mother is unfit or that or that such child is dependent or neglected within the purview of law or that the best interests of the child require such action."

Waterman v. Kitrick (1989), 60 Ohio App. 3d 6 -- Neglect established where mother may have been intoxicated, struck daughter with a shoe and caused bruises by grabbing arms.

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Dependency

In re A.W., 195 Ohio App. 3d 379, 2011-Ohio-4490 R.C. 2151.04(D) allows the court to find a child dependent if it is residing in a household where the parent or other member of the household committed an act which resulted in a sibling being adjudicated abused, neglected or dependent. A younger child had been taken to the hospital for treatment of a hematoma on the brain and chest bruising. No perpetrator was identified. That child was permed shortly before the mother gave birth. The infant was removed from the hospital and the agency subsequently obtained custody pursuant to (D), but not (C) of the dependency statute. Reversed. Though the infant is a sibling, notwithstanding the permanent commitment, the agency failed to prove one of the three people living in the household was responsible for the injury to the other child. The general responsibility of a mother for her child is not sufficient.

In re Alexander C., 164 Ohio App. 3d 540, 2005-Ohio-6134 -- There were reports of domestic violence in the parents' relationship, and they had not been particularly cooperative with the child welfare agency. But dependency focuses on the condition and environment of the children, not the faults of the parents. By all accounts the children were well provided for, and the parent's conduct was not shown to have had an impact sufficient to warrant state intervention. Nor was the parents' relationship shown to have an impact on the children amounting to neglect as defined by statute. Noncompliance with a case plan does not by itself constitute neglect.

In re Stoll, 165 Ohio App. 3d 226, 2006-Ohio-346 -- Mom had a meth lab in her garage, but dad lived with his mother in a adequate and well maintained home, had visited, and contributed to support. Though the mother preferred the children stay with her parents, the suitability of their father's home meant they were not dependent or neglected. The mother had arranged for her parents to care for the children before she entered drug rehab, so the children were properly provided for, applying In re Crisp (Feb. 5, 1981), Franklin App. No. 80AP-678; In re Darst (1963), 117 Ohio App. 374, 379; and In re Riddle (1997), 79 Ohio St. 3d 259. The father's alleged drug use did not make him an unsuitable custodian.

In re R.S., R.S., A.P., and A.G., Summit App. No. 21177, 2003-Ohio-1594 -- Mother's admitted use of marijuana outside the presence of her children was not shown to have impaired fulfilling her duties as a parent. Dependency finding reversed.

In re T.M., 161 Ohio App. 3d 638, 2005-Ohio-3083 -- Custody of six dependent children was split - four to mother, two to father. Mother sought leave to move to Florida. Father sought custody of all of the children. Court erred by not considering change of custody motion at the same time as relocation.

In re Hunt (1976), 46 Ohio St. 2d 378 -- To bring the case within the jurisdiction of the juvenile court, a dependency complaint must state the essential facts.

In re Burrell (1979), 58 Ohio St. 2d 37 -- Children are not dependent merely because their mother is living with her boyfriend, in the presence of the children, without plans to marry.

In re Bishop (1987), 36 Ohio App. 3d 123 -- (1) Dependency focuses on the condition of the child and not the faults of the parents. (2) Dependency is to be determined as of the date of the hearing. (3) Past history can be used to predict the fitness of a potential custodial placement.

In re Bibb (1980), 70 Ohio App. 2d 117 -- Dependency focuses on whether children are receiving proper care and not on the faults and habits of the parents. Though mother was periodically hospitalized for depression, she always made adequate arrangement for care of her children. Children were not dependent and court suggests agency's meddling exacerbated mother's problems, to the detriment of the children.

In re Tikyra A. (1995), 103 Ohio App. 3d 452 -- Teenage mother ran away from home to stay in house where drugs were allegedly used, leaving her young children in the care of their grandmother. Although the children may have been neglected, they did not fit the statutory definition of dependency as they were not homeless, destitute, or without proper care or support.

In re Robert S. (1994), 98 Ohio App. 3d 84 -- Huron County couple adopted child who was in the permanent custody of a Cuyahoga County child welfare agency. Child's emotional and behavioral problems led to filing of a dependency action and placement. Cuyahoga County agency held subject to contributing to costs of inpatient care, primarily because their lack of candor as to the child's problems and history, and promises of aid if needed, estopped them from denying payment.

In re Pieper (1993), 85 Ohio App. 3d 318 -- (1) Incidents occurring following an initial finding of dependency, and while the children were in the custody of a children services agency, may be considered in a subsequent dependency action. (2) An order prohibiting any contact between husband and wife is overly broad. Restrictions on contact must be limited to when the children are present or in her custody.

In re Willman (1986), 24 Ohio App. 3d 191 -- Sick child may be found dependent based on refusal of parents to allow further medical treatment for religious reasons. Compare R.C. 2151.03(B).

In re Brown (1989), 60 Ohio App. 3d 136, 137-138 -- "In proving that a child is dependent in that he or she lacks proper parental care because of the mental condition of a parent, evidence must be adduced to demonstrate not only that the parent had a mental incapacity, but also that the child lacked 'proper care' because of the mental incapacity."

In re Ward (1992), 75 Ohio App. 3d 377 -- (1) Mother's frequent incapacitation due to hypoglycemic reactions requiring care from nine year old and emergency squad runs, and proof of adverse impact on child supported finding of dependency. (2) Court allows one year period of limitation on temporary custody order to run from agency's request for temporary custody rather than from date of original filing.

In re Shott (1991), 75 Ohio App. 3d 270 -- A juvenile court may not award custody of a dependent minor to a mental health agency without complying with the requirements of Chapter 5122.

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Abuse

In re Baby Boy Blacksheares (2000), 90 Ohio St. 3d 197 -- Syllabus: "When a newborn child's toxicology screen yields a positive result for an illegal drug due to prenatal maternal cocaine abuse, the newborn is, for purposes of R.C. 2151.031, per se an abused child." Court avoids deciding whether a fetus is a "person" and thus a "child."

In re Pitts (1987), 38 Ohio App. 3d 1 -- In abuse proceedings, it is only necessary to prove that the child has been abused, regardless of who was responsible.

In re Boyce (1987), 37 Ohio App. 3d 105 -- Father's conviction for endangering children admissible in abused child action. Pursuant to Evidence Rule 803(21), the journal entry of judgment reflecting a jury's guilty verdict on an offense punishable by death or imprisonment for more than one year (or of a guilty plea, but not judgments entered on no contest pleas) is admissible in a subsequent civil case. This rule does not apply to criminal cases.

Clark v. Clark (1996), 114 Ohio App. 3d 558 -- Corporal punishment administered by father to child may have been unwarranted and excessive, but did not amount to abuse as it did not create a substantial risk of serious physical harm.

In re Schuerman (1991), 74 Ohio App. 3d 528 -- Abuse established where discipline of child with belt left substantial bruising. Sibling found dependent based on history of corporal punishment in mother's household.

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Jurisdiction

State ex rel. Brooks v. O‘Malley, 117 Ohio St. 3d 385, 2008-Ohio-1118 – Because "any person" may file a complaint alleging neglect, dependency or abuse, a court does not lack jurisdiction in proceeding on a complaint filed by an employee of a child welfare agency who is not a lawyer. Such filings do not constitute unauthorized practice.

In re Luman, 172 Ohio App. 3d 461, 2007-Ohio-2565 -- According to R.C. 2151.353(J) the jurisdiction of a juvenile court concerning a child residing in a different county in some circumstances terminates a year after the last action taken in a case. Mother who lived in county 1, sought unsuccessfully to regain custody in county 2 where the child had been adjudicated dependent. More than a year later she sought custody in county 3 where the child actually lived. Applying the statute, which is deemed unambiguous, the court in county 3 erroneously dismissed the mother's motion for want of jurisdiction. The court notes there may still be an impediment based on a prior paternity action in county 4.

In re Don B., Huron App. No. H-02-033, 2003-Ohio-1400 -- Cuyahoga County child was placed in a Huron County foster home where he was sexually abused. Huron county resisted return of child to Cuyahoga County because of slow progress towards adjudication there. Held that child remains within the jurisdiction of Cuyahoga County where his parents apparently continued to live.

In re Hlavsa (2000), 139 Ohio App. 3d 871 -- A juvenile court judge ordered granted permanent custody of children to a child welfare agency, but was suspended from practice before the order was journalized. Order was void. Order was not saved by journalization by administrative judge acting as the court's ex officio clerk.

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Parties; Intervention

In re H.W., 114 Ohio St. 3d 65, 2007-Ohio-2879 -- Syllabus: "A trial court does not abuse its discretion when, after a minor parent or parents involved in a custody proceeding and who were minors at the onset reach the age of majority, the court removes as parties to the action the child's grandparents, who have no independent legal interest or rights in the proceeding." Agency continued to seek PCC in litigation dating back to 2001. For an earlier round see In re Walker, 162 Ohio App. 3d 303, 2005-Ohio-3773. Mother is retarded. Grandparents had been active litigants. Opinion emphasizes the minimal legal rights of grandparents.

In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500 -- Syllabus: "Pursuant to R.C. 2151.352, as clarified by Juv. R. 4(A) and Juv. R. 2(Y), a child who is the subject of a juvenile court proceedings to terminate parental tights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances." Conflict case. In re Williams, Geauga App. Nos. 2002-G-2454 and 2459, affirmed. In re Alfrey, Clark App. No. 01CA0083, disapproved.

In re McDaniel, Lake App. Nos. 2002-L-158, 159, 2004-Ohio-2595 -- No abuse of discretion in refusing foster parents' motion to intervene. Foster parents do not have a constitutionally protected interest in proceedings concerning the foster child. At ¶41: Although participation may be warranted in some cases, when the issue is deprivation of parental rights, the foster parents' interest in preventing the return of the child to the parent in order to further their own desire for adoption is too predictable to justify the addition of the foster parents as parties."

In re Zhang (1999), 135 Ohio App. 3d 350 -- Child of schizophrenic mother was temporarily committed to child welfare agency and placed with foster parent. Mother absconded with child and returned to China. Agency and trial court were at odds as to whether this was acceptable. Ultimately the foster mother was permitted to intervene and obtained legal custody. Affirmed. See dissent as to why this was improper.

In re Jordan Mourey, Athens App. No. 02CA48, 2003-Ohio-1870, ¶ 19-23 -- Grandmother sought leave to intervene in permanent custody proceedings. Generally a grandparent has no constitutional right to associate with grandchildren, but may be joined if they have visitation rights. No error as such rights had been terminated before the motion to intervene was filed.

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Representation issues

In re J.S., 184 Ohio App. 3d 310, 2009-Ohio-5189 – Father missed the “adjudicatory” hearing on agency’s permanent custody motion but appeared for “dispositional” hearing, at which time counsel was appointed at his request. Failure to appoint counsel before the adjudicatory hearing did not violate his statutory right to counsel, but did violate due process. Here the court was aware of his assertion that he could not afford transportation to the hearing from his residence in an adjoining state, and that there were justifiable reasons for having missed some earlier hearings. The court had enough information at the beginning of the adjudicatory hearing to know counsel might be necessary to protect the father’s rights.

In re A.L., Franklin App. No. 07AP-638 and 647 -- In abuse cases Juv. R. 4(A) requires the appointment of counsel in addition to a GAL. Here the failure to do so at the time of the initial proceedings appears not to have been prejudicial, and the time to appeal has passed. Nor is the subsequent failure to appoint counsel during termination of parental rights proceedings prejudicial, there having been no allegations of subsequent abuse, and as the child‘s wishes, to the extent they could be discerned at age four, had been conveyed to the court.

In re P.M., 179 Ohio App. 3d 413, 2008-Ohio-6041 – Hearings were scheduled to determine support for a dependent child. Father missed some hearings and complained in objections of counsel‘s efforts. Failure to provide transcript did not justify overruling objections since they turned on complaints that would not be reflected by a transcript.

In re Sherman, 162 Ohio App. 3d 73, 2005-Ohio-3444 -- (1) Three children wanted to be permanently committed. One wanted to live with her father. Because of a conflict of interest, the same attorney could not continue to represent all four children. Reversed for failure to appoint separate counsel. (2) The statements of the children in a permanent custody case are inadmissible unless they fall within a hearsay exception. (3) The psychologist's report was erroneously admitted as it contained information based on the observations of others which was not in evidence. (4) The same applies to the written guardian ad litem's report, said to have been based on records and conversations. (5) The court should have appointed a psychologist for the father to rebut the conclusions of the agency's expert.

In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500 -- Syllabus: "Pursuant to R.C. 2151.352, as clarified by Juv. R. 4(A) and Juv. R. 2(Y), a child who is the subject of a juvenile court proceedings to terminate parental tights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances." Conflict case. In re Williams, Geauga App. Nos. 2002-G-2454 and 2459, affirmed. In re Alfrey, Clark App. No. 01CA0083, disapproved.

In re Moore, 158 Ohio App. 3d 679, 2004-Ohio-4544 -- In re Williams applies retroactively. The issue is not waived by the parent's failure to request appointment of counsel in addition to a guardian as it is the child's right to counsel that is at issue. Held error not to investigate the need to appoint counsel for children who had consistently expressed a desire to return home and the guardian was not an attorney. Compare In re R.A. Miller, Franklin App. No. 04AP-783, 2005-Ohio-897 where the children had not recently expressed a desire to return.

In re Wylie, Greene App. No. 2004CA0054, 2004-Ohio-7243 -- Sister's statement to the guardian, taken to mean both girls wished to return to their mother, placed the court under a duty to ascertain the need to appoint counsel. This was partially satisfied when one girl was interviewed in chambers and expressed no preference, but the issue was unresolved as to the other, requiring reversal. Compare In re Graham, 167 Ohio App. 3d 284, 2006-Ohio-3170 where the children were not consistent in expressing a desire to live with their mother.

In re M.L.R., 150 Ohio App. 3d 39, 2002-Ohio-5958 -- Dispositional hearing was set for 9:00. Counsel for father was allowed to withdraw when his client had not appeared by 9:45. Father arrived as hearing was underway. The court refused to appoint new counsel and father did not waive his right to counsel. Reversed. Claimed lack of "cooperation" at the last minute and without elaboration was not a sufficient basis for permitting withdrawal. Nor did the attorney's conduct satisfy ethical standards. Also see In re Tyler S., Lucas App. No. L-04-1294, 2005-Ohio-1225. Compare In re C.H., 162 Ohio App. 3d 602, 2005-Ohio-4183 which focuses on the mother's uncooperativeness and apparent disinterest over the course of proceedings.

In re Stacey S. (1999), 136 Ohio App. 3d 503 -- (1) Children in permanent commitment proceeding had a right to have counsel appointed to represent their interest. This was not discharged by appointment of a lay guardian and counsel to represent that guardian who later became guardian as well. Guardian favored termination of parental rights, but children expressed continuing love for their parents. (2) Missed doctor's appointment and obnoxious conduct of father escalated into PCC of six children. Reversed based on part of sufficiency of proof claim.

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Notice and attendance issues

In re C.C., 187 Ohio App. 3d 365, 2010-Ohio-780 – In permanent custody proceedings the court was not obligated to notify the Cherokee tribe based only on the father’s representation that the child’s great-grandmother was a member of the tribe. Under the federal Indian Child Welfare Act notice must be sent to the tribe when a youth meets the definition of an “Indian” child, being either a member of a tribe or eligible for membership and the biological child of a member.

In re B.S., 184 Ohio App. 3d 463, 2009-Ohio-5497, ¶62-64 – Father asserted his child had Native American ancestry but provided no support for this claim. None of the tribes he mentioned claimed an interest in the child, and declined to participate in permanent custody proceedings because the child was not deemed an “Indian child” under federal law. Because of this the father could not advance claims premised on 25 U.S.C. 1911 and 1912.

In re Thompkins, 115 Ohio St. 3d 409, 2007-Ohio-5238 -- Issue is what constitutes reasonable diligence in obtaining service on a missing father in termination of parental rights proceedings before service by publication. Attempt to obtain certified mail service at an out of county address where the father was thought to have lived was returned marked "attempted, not known" by the Post Office. Majority holds there was no need to attempt service by ordinary mail. Minority would remand for a determination whether sufficient efforts were made, applying Suzemore v. Smith (1983), 6 Ohio St. 3d 330.

In re Sheffey, 167 Ohio App. 3d 141, 2006-Ohio-619 -- Rush to permanently commit a newborn as the initial disposition for a neglected and dependent child ignored many procedural requirements as to notice and participation in hearings. Reversed as a denial of due process. Mother was imprisoned in Columbus when proceedings were conducted in Ashtabula. Though older children had been permanently committed, there was no plan put forth for reunification.

Ross v. Saros, 99 Ohio St. 3d 412, 2003-Ohio-4128 -- Mother who claimed to have missed termination of parental rights hearing because of lack of notice brought a habeas action. Held that she had an adequate remedy at law in the form of a previous unsuccessful appeal. Also held she would not necessarily have been entitled to release as it would not have been in the child's best interest to release him to a crack head who had stopped visiting.

In re T.C. (2000), 140 Ohio App. 3d 409 -- (1) Father was served by publication in the initial neglect, dependency and abuse proceedings, and was personally served in prison with regard to the permanent custody motion. He appeared and contested the action without claiming the initial service was defective. Therefore, the issue of proper service at the initial hearing on temporary custody was waived. (2) No abuse of discretion in denial of continuance when father fired his attorney midway through the hearings.

In re Lisbon, Stark App. No. 2003CA00318, 2004-Ohio-126 -- While a parent has a due process right to be present for termination of parental rights hearings, this right is not absolute when the parent is incarcerated. No error found in denial of a motion asking the mother be brought to court from Miami where she was being held. Court allowed deposition in lieu of testimony and a continuance for that to be done. Miami-Dade prison officials would not allow a deposition to be conducted.

In re Kutcher, Belmont App. No. 02 BE 58, 2003-Ohio-1235 -- No abuse of discretion found in refusal to continue a termination of parental rights hearing because of the mother's unexplained absence.

In re Q.G., 170 Ohio App. 3d 609, 2007-Ohio-1312 -- Mentally retarded mother had attended earlier hearings, but informed counsel she could not make it to court for the adjudicatory hearing on a PCC motion because she did not have money for bus fare. The hearing proceeded in her absence and parental rights were terminated. Reversed. The court was required to take extra care to assure due process was afforded.

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Guardian ad litem

In re C.T., 119 Ohio St. 3d 494, 2008-Ohio-4570 – Syllabus: "A guardian ad litem has authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a motion to terminate parental rights and award permanent custody in a child welfare case. Reverses. In re C.T., 174 Ohio App. 3d 594, 2007-Ohio-6970. The referenced provisions provide independent statutory authority for the GAL to file a permanent custody motion. Note: 2151.414 is limited to 2151.413 motions which must be filed by an agency. GAL motions probably would be adjudicated pursuant to 2151.353.

In re Hoffman, 97 Ohio St. 3d 92, 2002-Ohio-5368 -- Syllabus: "In a permanent custody proceeding in which the guardian ad litem's report will be a factor in the trial court's decision, parties to the proceeding have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody recommendation."

In re Kelley, Ashtabula App. No. 2002-A-0088, 2003-Ohio-194 -- Eleventh Circuit sua sponte reverses in a permanent commitment case where the magistrate failed to fully and specifically discuss the R.C. 2151.414(D) factors in determining whether termination of parental rights was in the best interest of the children. Trial judge deemed to have abused his discretion in adopting the magistrates decision. Also see In re Smith, Ashtabula App. No. 2002-A-0098, 2003-Ohio-800.

In re Elliott, Jefferson App. Nos. 03 JE 30, 33, 2004-Ohio-388 -- (1) Where the mother's mental health was a central issue in termination of parental rights proceedings, it was error not to appoint an expert examiner upon her motion. (2) Reasonable efforts to reunite the family is an element controlling the award of permanent custody. Award of permanent custody reversed where reunification was not a part of the agency's initial plan, then parent complied with the case plan when it was made an objective. In particular, there was no evidence the father could not parent the child.

In re Tyas, Clinton App. No. CA2002-02-010, 2002-Ohio-6679 -- Court finds neither plain error or structural error where no request was made to call the guardian as a witness or to cross-examine the guardian concerning the report. Also see In re Bowers Franklin App. Nos. 02AP-347 and 379, 2002-Ohio-5084, ¶32-43.

In re Johns, Stark App. No. 2003CA00146, 2003-Ohio-3621 -- No error in the guardian's report being filed eight days after the hearing. Report offered no new facts or thoughts on relevant issues, already testified to by social workers. Mother's counsel had passed up opportunity to cross-examine the guardian. PCC reversed anyway. Agency primarily relied on permanent commitment of two older children. But mother had complied with case plan and began with a fresh slate as to this child.

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Evidentiary issues - adjudication

In re Mack, 148 Ohio App. 3d 626, 2002-Ohio-4161 -- Psychological evaluation report offered into evidence at a PCC hearing was inadmissible hearsay. Examiner did not testify. Error harmless as the judgement was supported by the balance of the evidence.

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Time constraints

In re Olah (2000), 142 Ohio App. 3d 176 -- Failure to conduct a dispositional hearing within 90 days of the filing of the complaint requires dismissal without prejudice. Dissent would find implicit waiver of the time limit.

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Disposition issues

In re Perez (1999), 135 Ohio App. 3d 494 -- In permanent commitment proceedings, court erroneously awarded legal custody to relatives who had not filed a motion requesting custody.

In re L.R.T., 165 Ohio App. 3d 77, 2006-Ohio-207 -- Magistrate granted agency's motion for permanent custody. Judge sustained mother's objections and granted legal custody to a family member. This was improper as the family member had not filed a motion seeing custody. It was also improper for the judge to sustain objections without a complete review of the transcript.

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Planned Permanent Living Arrangements

In re A.S., 193 Ohio App. 3d 697, 2009-Ohio-3932, ¶49-58 – Concurring opinion is critical of the Supreme Court’s decision in In re A.B., 110 Ohio St. 3d 230, 2006-Ohio-4359 that only child welfare agencies may seek PPLA’s.

In re A.B., 110 Ohio St. 3d 230, 2006-Ohio-4359 -- Syllabus: "After a public children services agency or private child placing agency is granted temporary custody of a child and files a motion for permanent custody, a juvenile court does not have authority to place the child in a planned permanent living arrangement when the agency does not request this disposition. (R.C. 2151.353(A)(5), applied.)" Decision is driven by Dickensian sentimentality instead of the rules of statutory construction. Reverses In re A.B., Summit App. No. 22659, 2005-Ohio-4936 which found R.C. 2151.353(A)(5) requires the request of a child welfare agency, but R.C. 2151.415(F) does not.

In re A.S., 163 Ohio App. 3d 647, 2005-Ohio-5309 -- Of its own motion a court hearing a request for permanent custody pursuant to R.C. 2151.414 may order a child placed in a PPLA. Here the mother of a five year old became mentally ill when the child was three . After time spent in jail and a mental hospital she was unlikely to be able to resume care anytime soon. But visits were affectionate and the mother-child bond was strong. The foster parents were receptive to either adopting or continuing to provide care in a PPLA. The trial court properly determined permanent custody was not in the child's best interest. Opinion is post R.C. 2151.414 counterpart to In re Gibson and In re McGraw (July 19, 1979), Franklin App. Nos. 78AP-856 and 857. Reversed: In re A.S., 110 Ohio St. 3d 283, 2006-Ohio-4479.

Miller v. Greene County Children Services Board, 162 Ohio App. 2d 416, 2005-Ohio-4035 -- Agency sought permanent custody of a Down syndrome child. Guardian ad litem filed a motion for placement in a planned permanent living arrangement and prevailed. The evidence supported the conclusion the child was unable to function in a family-like setting and needed to remain in residential or institutional care. The foster home was able to manage his problems due to special training, but was not in a true sense a family-like setting.

In re Tanker (2001), 142 Ohio App. 3d 159 -- Court denied agency's PCC request, but extended the agency's legal custody to permit long-term foster care. On appeal the agency claimed the criteria for a planned permanent living arrangement were not met. The four siblings live together with foster parents who are willing to continue, but unwilling to adopt because of their age and financial considerations. Special needs of the children are being met, and it is unlikely they could be placed for adoption singly, let alone as a group. "We fail to see what purpose it would serve to put the children in the agency's permanent custody for the sole purpose of forcing the foster parents' hand in adoption."

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Permanent commitment - complaints

In re C.W., 104 Ohio St. 3d 163, 2004-Ohio-6411 -- A complaint for permanent custody must allege conditions that currently exist. For 12 of 22 months in placement to be a basis for PCC, those 12 months must have passed by the time of filing, not the time of adjudication. Requiring the full 12 months to pass before filing recognizes the constitutional rights of parents. Also see In re K.G., Wayne App. Nos. 03CA0066-68, 2004-Ohio-1421.

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Permanent commitment - consent or acquiescence

In re K.H., 191 Ohio App. 3d 251, 2010-Ohio-5172 – Mother consented to award of permanent custody. (1) Consent was invalid as the court did not fully review the alternative categories of eligibility under 2151.414(B)(1)(a). (2) Consent is not enough for an agency to be awarded permanent custody. Abbreviated testimony by the caseworker was insufficient.

In re B.M., 181 Ohio App. 3d 606, 2009-Ohio-1718, ¶615 -- Stipulations have the same force and effect as testimony and may rise to the level of clear and convincing evidence depending on the nature of the matters stipulated. In a termination of parental rights proceeding the parties worked out a stipulation of facts while the father was debating surrender of parental rights. This formed the basis for the court‘s adjudication. Majority rejects claims a due process claim that a Juv. R. 29 inquiry was required and that proceeding in this manner amounted to ineffective assistance of counsel.

In re Terrence-Jamieson S, 162 Ohio App. 3d 229, 2005-Ohio-3600 -- Mother's consent to surrender of custody in was not voluntary. By telephone from prison, she participated in mediation leading to the agreement. The hearing took forty-five minutes and required three pauses for consultation with counsel. She consented because she believed she could not win on the merits. Opinion is critical of the use of mediation in permanent custody proceedings citing the unequal positions of the parties - agencies have everything to gain and if an agreement is reached parents can only lose.

In re Lakes, 149 Ohio App. 3d 128, 2002-Ohio-3917 -- At ¶34: "Furthermore, Juv. R. 34 pertaining to dispositional hearings does not require the court to engage in a colloquy with a parent in an R.C. 2151.414 proceeding, which this proceeding was, such as that required by Juv. R. 29 at adjudicatory hearings." At ¶71: Lacking the effect of a plea to a charge, a parent's admission in a dispositional hearing that his or her child's best interest would be served by permanent placement elsewhere than with the parent is not a matter that requires protections similar to those in Juv. R. 29(D). The admission is but one more article of testimonial evidence for the court to consider in resolving the best-interest question. The court is entitled to credit the admission or discredit it, on the merits." Also see In re Baby Girl Doe, 149 Ohio App. 3d 717, 2002-Ohio-4470, ¶64-67; In re Williams, Franklin App. No. 03AP-1007, 2004-Ohio-678.

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Permanent commitment, procedural issues

In re K.W., 185 Ohio App. 3d 629, 2010-Ohio-29 – Magistrate granted agency’s R.C. 2151.419(A)(2) motion to bypass the statutory requirement of reasonable reunification efforts based on prior termination of parental rights with respect to other children. The sole assignment of error maintained termination of parental rights before the child’s first birthday violated the mother’s constitutional rights. A subsidiary argument maintained R.C. 2151.419(A)(2) was unconstitutional, both on its face and as applied to her. The court finds the provision constitutional, and notes the mother’s uncontrolled drug and mental health issues.

In re A.N., 181 Ohio App. 3d 793, 2009-Ohio-1873 – (1) That a parent may be incompetent is not a bar to proceeding with termination of parental rights proceedings. In any event, counsel stipulated a report finding his client competent. (2) Mother may not challenge her initial admission child was abused and neglected and notice of appeal was not filed within thirty days of that portion of proceedings. (3) Father‘s attorney was remiss in not attending later hearings, but outcome would not have changed.

In re D.H., 177 Ohio App. 3d 246, 2008-Ohio-3686 – Mother was not present for hearing on status of child and disposition by grant of permanent custody to child welfare agency. (1) Juvenile Rule 34 requires there be at least one day between the adjudication of neglect, dependency or abuse and disposition unless the parties have been served with all documents required for the dispositional hearing and agree to proceeding immediately. (2) Appeal tolls the running of the thirty days allowed for disposition following a finding of neglect dependency or abuse. (3) Notice requirements were satisfied by counsel‘s representation he had spoken with mother about the hearing date. (4) No error in failure to record pretrial hearings. (5) Failure to object in the trial court waives claimed error with regard to service of the guardian ad litem‘s report.

In re Rodgers (2000), 138 Ohio App. 3d 510 -- When ruling on a motion for permanent custody, a trial court should usually apply the version of the statute in effect at the time the motion for permanent custody was filed. However, no retroactive law violation is found where an amended version of R.C. 2151.414 contains language indicating it is to apply retroactively to a limited number of cases where the motion was filed before its effective date, and the change was remedial. Also see In re Ament (2001), 142 Ohio App. 3d 302, 308-309.

In re Nice (2001), 141 Ohio App. 3d 445 -- (1) Extension of a temporary custody order is a final order and may be appealed. But such extension becomes a moot issue once permanent custody has been granted. (2) A court may hear testimony pertaining to neglect and dependency that is relevant to determination of a permanent custody motion. The prohibition in R.C. 2151.414(A)(1) "is merely an attempt to emphasize that the outcome of the permanent custody hearing has no effect on the prior adjudication of neglect or the prior order of temporary custody, meaning that the parent cannot 'erase' past findings of neglect by defeating the agency's motion for permanent custody." (3) If children have been in custody for more than 12 of 22 months the court must proceed to find whether permanent custody is in their best interest. It does not have to determine whether they cannot or should not be returned to their parents.

In re Sadiku (2000), 139 Ohio App. 3d 263 -- Fifteen year old mother of twins was arrested for shoplifting a $20 Mickey Mouse watch she needed to keep track of time for children's appointments. Agency put her and twins in separate foster homes, provided little in the way of services, blew off phone calls, then sought permanent custody. (1) Court improperly prevented mother from presenting testimony rebutting the report of the guardian ad litem because the report was not sworn testimony. (2) Though the issue is moot, court questions propriety of ordering PCC against this background.

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Permanent commitment, Determination on the merits generally

In re S.C., 189 Ohio App. 3d 308, 2010-Ohio-3394 – Agency did not carry its burden of proof with respect to termination of the father’s rights Psych exam relied upon was two years old.

In re A.S., 193 Ohio App. 3d 697, 2009-Ohio-3932, ¶49-58 – The Sixth Amendment right to confrontation does not apply in termination of parental rights proceedings. Court erred in admitting grandmother’s ten year old psychological evaluation, relying on Evid. R. 804, as the report did not fall within any of the hearsay exceptions set forth in that rule. Error was harmless as much the same information appeared in a properly admitted subsequent psych. report.

In re S.B., 183 Ohio App. 3d 300, 2009-Ohio-3619 – (1) ¶9-24: Attorney was appointed as both counsel and guardian ad litem. Child gave conflicting responses when asked how she felt about being adopted. Though the prescribed procedure is appointment of a new GAL, and continuation as counsel, the court appointed new counsel and allowed the guardian to continue in that role, as he was also the guardian for siblings. Imprisoned father assigned this as error. Held that he lacked standing as his interest and the child‘s were not aligned as to continuation of the family unit. Court notes standing had been found in another case where such interests were aligned. Furthermore, error was waived by both the initial GAL-counsel and new counsel appointed for the child. (2) ¶32-35: Presumption of abandonment set forth in R.C. 2151.011(C) applies to any 90-day period, even when contact has resumed. Court holds incarcerated father to this presumption, noting paternity was determined only recently and recent visits and calls followed seven years of no contact.

In re Kayla H., 175 Ohio App. 3d 192, 2007-Ohio-6128 – At ¶44 the court is of the view that parental unfitness must be established as to each parent through a finding on one or more R.C. 2151.414(E) factors. Basis for the agency‘s motion was that the father was a convicted pedophile, though the children in the household had not been victimized. Parents were compliant with the case plan, but the father‘s time in therapy had not satisfied those running the programs. The court concludes that being a pedophile constitutes a severe mental illness within the meaning to R.C. 2151.414(E)(2). The mother‘s continued cohabitation with a pedophile is deemed an unwillingness to prevent her children from suffering sexual abuse pursuant to R.C. 2151.414(E)(14). Essentially a sixteen year old sex-offense conviction was the sole basis for terminating parental rights. Affirmed: In re K.H., 119 Ohio St. 3d 538, 2008-Ohio-4825. The Supreme Court claims the basis for granting permanent custody is the lack of successful therapy, not the diagnoses of pedophilia.

In re Patterson (1999), 134 Ohio App. 3d 119, 129 -- "The willingness of a relative to care for a child does not alter what a court considers in determining permanent custody." Also see In re C.C., Franklin App. No. 04AP-883, 2005-Ohio-5163, ¶80; In re S.W., Franklin App. No. 05AP-1368, 2006-Ohio-2958; In re Shaefer, 111 Ohio St. 3d 498, 2006-Ohio-5513, ¶64; In re Hilyard, Vinton App. No. 05CA600, 2006-Ohio-1965, ¶43.

In re J.L., 176 Ohio App. 3d 186, 2008-Ohio-1488 – Termination of parental rights premised on corporal punishment amounting to abuse reversed. Using a belt to discipline a three-year old was within the range of permissible discipline as outlined in ¶12.

In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104 -- (1) With exceptions, an agency seeking permanent custody must prove reasonable efforts were made towards reunification. While R.C. 2151.419(A)(1) does not apply to permanent custody proceedings, there may be an obligation to attempt reunification under other provisions, and such planning is a matter for consideration when the court relies upon 2151.414(E)(1). The court may rely on a reasonable efforts finding from an earlier hearing in relation to this factor or may find a child cannot or should not be returned home pursuant to other Subdivision (e) factors. Dissent would require such a finding across the board. (2) Courts have the discretion to deny an in camera interview of a child concerning his or her wishes with regard to termination of parental rights. Without addressing hearsay concerns, the court finds the statute allows children's wishes to be expressed through the guardian ad litem.

In re D.A., 113 Ohio St. 3d 88, 2007-Ohio-1105 -- Syllabus: "When determining the best interest of a child under R.C. 2151.414(D) at a permanent-custody hearing, a trial court may not base its decision solely on the limited cognitive abilities of the parents."

In re Nicholas P., 169 Ohio App. 3d 570, 2006-Ohio-6213 -- A prior award of permanent custody does not constitute a de facto termination of parental rights as to later born children. Treating it as such would violate the constitutional protection of parental rights. The agency had done little investigation, and the evidence did not establish that this child was dependent. There was no evidence the parents had failed to remedy the conditions that led to removal, and the agency at a "bypass" hearing was improperly relieved of its obligation to provide services directed towards reunification.

In re Beatty, 167 Ohio App. 3d 730, 2006-Ohio-3698 -- It was a denial of procedural due process to forbid mother calling relatives who had been considered as a placement on the basis they had not filed a motion seeking custody. Their testimony would have been relevant to determining the child's best interest.

In re Stillman, 155 Ohio App. 3d 333, 2003-Ohio-6228 -- (1) R.C. 2151.414 does not require the court to make an express finding of parental unfitness when terminating parental rights. (2) Court declines to address constitutional claim that 12 of 22 months in placement as a qualifying category for terminating parental rights violates substantive due process, equal protection and procedural due process. Dissent is favorably disposed towards these claims. (3) Majority is of the opinion that 12 or more months in placement is an indication of parental unfitness.

In re Sean B., 170 Ohio App. 3d 557, 2007-Ohio-1189 -- (1) ¶30: "Before any court may consider whether a child's best interests may be served by permanent removal from his or family, there first must be a demonstration that the parents are 'unfit.'" Citing Quilloin v. Walcott (1978), 434 U.S. 246, 255 and In re Schoeppner (1976), 46 Ohio St. 2d 21, 24. (2) ¶40: To exploit the "catchall" subsection within R.C. 2151.414(E) a court must explain with specificity what other factor the court deems comparable. (3) Grant of PCC reversed. Children were teenagers. Caseworker didn't care for "Uncle Charlie," members of the mother's family, or mother's efforts. Parental unfitness was not proven. The court is uneasy about the constitutionality of the 12 of 22 provision, though that was not raised by the parties. Accepting it as a basis for PCC the court finds termination of parental rights is not in the children's best interests. ¶69: When PCC is granted on the basis of the passage of a "mere amount of time" courts must examine such awards "with exacting scrutiny."

In re Alyssa C., 153 Ohio App. 3d 10, 2003-Ohio-2673 -- (1) ¶12: The court applies to permanent custody proceedings the In re Perales principle that an award of custody to a non-parent depends on a finding of parental unsuitability, then says this has been statutorily defined and sets forth an incomplete, but well-intended, reading of 2151.414. (2) ¶13: "A parent's failure to adhere to or complete a case plan is not, in itself, a ground for the termination of parental rights. (3) ¶ 28: Without a record as to why the child was removed from the home, it is impossible to tell whether the mother remedied that situation. (4) ¶32: For an appellate court to consider "any other factor" as permitted by 2151.414(E)(6), the trial court must articulate what that factor is. (5) ¶ 37-48: Court reverses on unassigned plain error. Trial court allowed mother's attorney to withdraw when she did not appear for the hearing. Counsel's tenacity in attempting to contact her was placed in doubt by caseworker having spoken with mother two days earlier. Court never appointed counsel for the father, who was out-of-state avoiding a warrant.

In re Baby Girl Doe, 149 Ohio App. 3d 717, 2002-Ohio-4470 -- Infant was found in a garbage bag abandoned in a dumpster. Juvenile mother was bound over and indicted for attempted murder. College student putative father did not appear committed to assuming care. Grandparents wanted child placed for adoption in a religiously observant home of their choice. Trial court held not to have abused its discretion in granting agency motion for permanent custody.

In re Wingo (2001), 143 Ohio App. 3d 652, 659-660 -- (1) "...R.C. 2151.414 does not require that each and every condition listed in subsection (E) exist before the court may terminate parental rights...When R.C. 2151.414(E)(1) forms the basis for the court's finding, the agency must have provided a case plan and tile to remedy the situation that led to removal of the children from the household." (2) When permanent custody is sought by motion, R.C. 2151.419 is also applicable. R.C. 2515.419(A)(1) requires that the court determine whether the children services agency that will be given custody of the child has made reasonable efforts to make it possible for the child to return home safely."

In re Estep (February 8, 2001), Franklin Co. App. No. 00AP-623, unreported -- Permanent commitment was premature in view of the mutual affection between parent and child and the mother's efforts.

In re Glen (2000), 139 Ohio App. 3d 103 -- (1) PCC affirmed where indications were mother would resume relationship with abusive father after his release from jail, and had otherwise failed or had been slow in complying with case plan. (2) Direct of mother included question "Why would you visit this guy who seems to make a career of...impregnating first, then beating up girls, and does it for years and years?" While court does not agree with strategy, it refuses to reverse on ineffective assistance of counsel claim premised on Richman v. Bell (6th Cir. 1997), 131 F. 3d 1150.

In re Secrest, Montgomery App. No. 19377, 2002-Ohio-7096 -- Second District is of the view award of permanent custody requires proof that reasonable efforts at reunification have been made or that such efforts would be futile. Reversed as agency did not make a reasonable effort to reunify child and parent who had moved to Pennsylvania and remarried. Whether or not this is a correct reading of R.C. 2151.414, such an requirement may be argued adjunct to either determining the best interests of the child, or an agency's reliance on the amount of time spent in its custody. Companion case: In re Secrest, Montgomery App. No. 19378, 2002-Ohio-7094. Also see In re Starkey, 150 Ohio App. 3d 612, 2002-Ohio-6892.

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Permanent commitment - case plan compliance

In re T.R., 120 Ohio St. 3d 136, 2008-Ohio-5219 ¶17-- "R.C. 2151.413(E) requires a children-services agency seeking permanent custody of a child to update the child‘s case plan to include adoption plans, but it does not require the agency to perform this action before the juvenile court rules on the motion for permanent custody." Time line in the Administrative Code exceeded the authority of the Department of Job and Family Services.

In re C.C., 187 Ohio App. 3d 365, 2010-Ohio-780, ¶25 – A parent’s successful completion of the terms of a case plan is not dispositive on the issue of reunification. In determining whether a child can or should return home the ultimate question is whether the parent has remedied the conditions that required removal. The case plan is a means of achieving that goal, but is not the goal itself.

In re West, Athens App. No. 03CA20, 2003-Ohio-6299 -- Even though mother was in compliance with the case plan, permanent commitment is upheld, as her conduct demonstrated termination of parental rights was in the children' best interest.

In re Moore, 153 Ohio App. 3d 641, 2003-Ohio-4250 -- (1) At a shelter care hearing the court is required to advise parents of the possible consequences of not complying with the case plan. But the failure to do so does not require reversal following termination of parental rights where the subsequent information provided eliminated the prejudice the initial error may have caused. (2) Full compliance with a case plan does not guarantee denial of a permanent custody motion. (3) Absent a request for the appointment of replacement counsel, no abuse of discretion found in not doing so. Father discharged appointed counsel indicating he intended to hire new counsel, but ultimately went to trial unrepresented.

In re Campbell (2000), 138 Ohio App. 3d 786 -- Mother's failure to take advantage of opportunities to remedy unemployment and homelessness warranted permanent commitment.

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Permanent commitment - impairment

In re Jordan, Clark App. No. 02CA0092, 2003-Ohio-6071 -- Permanent commitment reversed as there was not clear and convincing evidence that the mother's mental retardation (I.Q. 61) was so severe she would be unable to provide a permanent home for her 11-year old son. Mother had lived on her own until serving 30 days for child endangerment, which was the result of suddenly being called upon to care for three children in addition to her own.

In re Nicholas H. (2000), 137 Ohio App. 3d 442 -- Child's failure to thrive coupled with mother's limited abilities, major depression, and poor living conditions warranted permanent commitment.

In re Graham, 167 Ohio App. 3d 284, 2006-Ohio-3170 -- Mother and kids were all in therapy, but months away from the point at which family therapy might become beneficial. Even then problems might be beyond remedy. Despite bonds, the children's need for secure placement supports decision to terminate parental rights.

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Permanent commitment - abandonment

In re Tashayla S., Lucas App. No. L-03-1253, 2004-Ohio-896 -- Father's failure to visit or communicate with his daughter is not excused by his belief he was not at fault for circumstances resulting in her being put in agency custody, and thus should not have faced the indignity of supervised visitation. Court further notes he was not absolved of the duty to remain aware of his child's living conditions.

In re Hardy, Mahoning App. No. 04 MA 11, 2004-Ohio-4542 -- Prolonged time in placement is not abandonment. Mother visited regularly. Permanent custody award reversed notwithstanding alternate grounds.

In re Cravens, Defiance App. No. 4-03-48, 2004-Ohio-2356 -- Abandonment as a qualifying category for termination of parental rights is subject to the R.C. 2151.011(C) presumption of abandonment after 90 days without a visit of contact. Court properly rejected father's claims his efforts were frustrated by the child welfare agency.

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Permanent commitment - best interests and maturity issues

In re G.N., 176 Ohio App. 3d 236, 2008-Ohio-1796 – Reversed, because in undertaking the best interests determination, the court, in weighing factor R.C. 2151.414(D)(4), concluded custody to the agency was the best option for achieving a legally secure placement. Agency custody must be the only way this can be achieved. Case had been previously reversed at 170 Ohio App. 3d 76, 2006-Ohio-126 for failure to properly weigh the statutory factors. This returned to the case to the posture it was in at the time error was committed. Since this was prior to arriving at a final judgment, mother‘s attempt to use Civil Rule 60(B) to introduce new evidence of her improved fitness was properly rebuffed. Civ.R. 60(B) only applies to relief from final judgments.

In re J.W., 171 Ohio App. 3d 248, 2007-Ohio-2007 -- Focusing on R.C. 2151.414(D)(4) weighing of a child's need for a legally secure placement and whether that placement can be achieves without PCC, the court reverses. Present foster parents do not appear to be an adoptive home. Father has maintained bond and had prospects of marriage, housing, and employment in another state. Both father and GAL appealed.

In re Schaefer, 111 Ohio St. 3d 498, 2006-Ohio-5513, ¶63-65 -- In weighing the best interest of the child in accordance with the factors listed in R.C. 2151.414 a court is not required to determine permanent custody is the only option. The court of appeals had found the availability of a relative placement precluded permanent commitment.

In re Lopez, 166 Ohio App. 3d 688, 2006-Ohio-2251 -- Reversed as to a five year old deemed mature enough to have her wishes made known through the guardian ad litem or interview. Affirmed as to two and three year olds with delays indicating insufficient maturity. On remand the court is to consider whether independent counsel should be appointed for the five year old.

In re Wright, Franklin App. No. 04AP-435, 2004-Ohio-4045 -- Court did not err by not making findings as to the child's wishes where the child was four and the caseworker indicated he was not mature enough to understand the situation. In re Swisher, Franklin App. No. 02AP-1408, 2003-Ohio-5446 distinguished on the basis some of those children were older. Nor a request the child be interviewed in chambers improperly refused. Mother did not have standing to complain counsel was not appointed for the child.

In re Bounds, Allen App. No. 1-03-11, 2003-Ohio-4733 -- Inertia of child welfare agencies in pursuing reunification with a mother who lived in Missouri, the trial court's reliance on outdated information, and positive steps taken by mother, lead to conclusion that the trial court erred in concluding termination of parental rights was in the child's best interest.

In re Alexis K., 160 Ohio App. 3d 32, 2005-Ohio-1380 -- Award of permanent custody reversed as not supported by clear and convincing evidence. Court sees termination as a last resort remedy for incapacity or something akin to criminal neglect. Mother's difficulties meeting objectives of the case plan characterized as Kafkaesque. Wishes of the children were not made known to the trial court by the guardian, who may never have spoken with them or otherwise attempted to ascertain their wishes. Trial court is praised for focusing on parental unfitness instead of 12 of 22 months in custody, as that provision may not survive due process scrutiny.

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Appellate review generally

In re Weaver, 179 Ohio App. 3d 792, 2008-Ohio-6189 – Court had before it rival custody motions for legal custody. Temporary custody was granted father. Grandmother appealed. Appeal dismissed. Citing In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840 the court finds temporary custody awards do not fully determine the action.

In re J.S., 157 Ohio App. 3d 127, 2004-Ohio-2328, ¶33 -- "Our review of a custody determination by the juvenile court begins with the recognition that the court's exercise of discretion should be accorded the utmost respect. A reviewing court must take into account that the 'knowledge gained through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record.' A court exercising juvenile court jurisdiction is invested with very broad discretion, and, unless that power is abused, a reviewing court is not warranted in disturbing its judgment." (Footnotes omitted.)

In re Byerly, Portage App. Nos. 2001-P-0158, 2004-Ohio-523 -- To have standing on appeal, a substantial right of a party must be affected. Though the motion leading to the hearing was dismissed, the magistrate changed orders controlling visitation, thus affecting a substantial right. Appellant was denied right to be heard through cross-examination and by calling witnesses. The court also erred by refusing to allow a proffer and by refusing to allow deposition of an expert.

In re Washington (2001), 143 Ohio App. 3d 576 -- (1) At p. 579: "When evaluating whether a judgment is against the manifest weight of the evidence in a civil context, the standard of review is the same as that in a criminal context." (2) Reversed because psychological evaluation of the parents was inadmissible hearsay, received in violation of Juv. R. 34(I).

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Appellate review - permanent commitment cases

In re J.C., 186 Ohio App. 3d 243, 2010-Ohio-637 – Although an appellate court is not obligated to consider an issue not explicitly raised by the parties, it may consider an issue implicit in an issue properly raised in the appeal. Agency moved for permanent custody after children had only been back in their custody or two months. District precedent calls for twelve months at the time the motion is filed, not encompassing time from earlier cases

In re C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899 – Syllabus: “When a trial court denies a children-services agency’s motion to modify temporary legal 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. 2905.02.” In In re Adams the Court held a child welfare agency could not appeal the denial of a motion seeking permanent custody. The distinction is that agencies do not have a substantial right in the permanent custody of a child based on their temporary custody, but parents do have substantial rights in the custody of a child.

In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-6810 – Syllabus: "An appeal of an adjudication order of abuse, dependency, or neglect and the award of temporary custody pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to App. R. 4(A)." Parent sought to raise an assignment of error pertaining to the initial proceedings which resulted in an award of temporary custody in an appeal from the order granting permanent custody. Reverses In re H.F., 176 Ohio App. 3d 106, 2008-Ohio-1627.

In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840 -- Syllabus: "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)." At ¶7: Children and their parents have an interest in reunification and with limited statutory exceptions the state must make reasonable efforts to reunify the family before terminating parental rights. In re Murray (1990), 52 Ohio St. 3d 155 continues to permit appeals by parents from orders finding children neglected, dependent or abused.

In re McMillin, 171 Ohio App. 3d 686, 2007-Ohio-2046 -- Reversed because the trial court judgment entry does not reflect that it addressed the factors listed in R.C. 2151.414(D) for determining the best interests of the children. This omission also makes it impossible for an appellate court to weigh the sufficiency of the evidence.

In re M.B., Franklin App. No. 04AP-755, 2005-Ohio-986 -- At ¶21: "Permanent custody motions supported by some competent, credible evidence going to all the essential elements of the case will not be reversed * * * as against the manifest weight of the evidence." In re Brown, Franklin App. No. 03AP-969, 2004-Ohio-3314, at ¶4, citing In re Brofford (1992), 83 Ohio App. 3d 869; Abram, supra. Further, in determining whether a judgment is against the manifest weight of the evidence, the reviewing court is guided by the presumption that the findings of the trial court are correct. Brofford, supra, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77."

In re Harris, Hamilton App. No. C-020512, 2003-Ohio-672 -- In an appeal from the grant of permanent custody, the initial determination of dependency may not be assigned as error, when the thirty days for perfecting a timely appeal have already passed.

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Further proceedings on remand

In re Salsgiver, Geauga App. No. 2002-G-2477, 2003-Ohio-1206 -- Permanent custody case had been remanded for further consideration of matters bearing on the best interest of the child. Trial court ordered a supplemental report from the guardian ad litem, which the father assigned as error. While the general rule is that a trial court is to start anew at the point the error occurred, here the failure was that of the guardian, not that of the child welfare agency. No abuse of discretion found in order of an additional report. Reversed anyway, because the court failed to schedule an additional hearing to permit the father to present additional evidence in response to the report and to permit cross-examination of the guardian. Court also erred by failing to make complete findings on statutory best interest factors.

In re Walker, 162 Ohio App. 3d 303, 2005-Ohio-3773 -- There had been a previous reversal based on inadmissible hearsay within a psychologist's report and testimony. On remand, the trial court reopened the hearing and allowed the agency to remedy this situation, including offering the testimony of another psychologist. Reversed. On remand, a case returns to the docket of the trial court in the same condition that obtained before the action that resulted in appeal and reversal. Here that was the hearing on the motion for permanent custody. A full new hearing should have been conducted. Furthermore, it was error to allow the agency to present an additional witness but deny the parent and grandparent that opportunity. Issue on this remand is the present situation, after five years have passed. Also suggested that a new magistrate be assigned.

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Post-adjudication custody motions

In re C.R., 108 Ohio St. 3d 369, 2006-Ohio-1191 -- Case involves competing motions for custody of a neglected child by the father and two sets of relatives. (1) At ¶6: Trial court is strongly criticized for extending three days of hearings over a two month period, citing Code of Judicial Conduct, Canon 3(B)(8). (2) The court distances neglect, dependency and abuse proceedings from the parental unfitness rule of In re Perales (1977), 52 Ohio St. 2d 89. Syllabus: "(1) An award of legal custody of a child does not divest parents of their residual parental rights, privileges, and responsibilities. (2) A juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child's custodial and/or noncustodial parents. (3) When a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no duty to make separate findings at the dispositional hearing that a noncustodial parent is unsuitable before awarding legal custody to a nonparent."

In re James, 113 Ohio St. 3d 420, 2007-Ohio-2335 -- the changed circumstances and necessity rule of R.C. 3109.04(E)(1)(a) survives constitutional challenge. Four-three decision reverses In re James, 163 Ohio App. 3d 442, 2005-Ohio-4847.

In re McBride, 111 Ohio St. 3d 19, 2006-Ohio-3454 -- Syllabus: "A parent who has lost permanent custody of a child does not have standing as a nonparent to file a petition for custody of that child. (R.C. 2151.414(F) and 2151.353(E)(2), applied.) Reverses In re McBride, 158 Ohio App. 3d 572, 2004-Ohio-5269

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Other issues

In re O.H.W., 175 Ohio App. 3d 349, 2008-Ohio-627 – Grandparents obtained custody through a privately filed neglect complaint. Children services agency was not a party. Mother was served by publication, but resurfaced and filed multiple pro se motions directed at regaining custody. Mother‘s prospects turned on a whether or not there had been a State v. Perales mandated finding of parental fitness, and on the applicability of In re Hockstok, 98 Ohio St. 3d 349, 2008-Ohio-627. Majority sidesteps addressing the merits based on timeliness of filing objections. Dissent notes failure to contain required advisement regarding necessity of objections as foundation for appeal and the ambiguity of the judgment entry.

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