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Children’s Services Agency Must Request Child’s Placement In ‘Permanent Living Arrangement’
2005-1966. In re A.B., 2006-Ohio-4359.
Summit App. No. 22659, 2005-Ohio-4936. Judgment reversed and cause remanded.
Moyer, C.J., Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Resnick and Pfeifer, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4359.pdf
(Sept. 6, 2006) The Supreme Court of Ohio held today that, after temporary custody of abused or dependent children has been granted to a county child services agency, and that agency has filed a motion for permanent custody, a juvenile court does not have authority to place the children in a “planned permanent living arrangement” when the child services agency has not requested that disposition. The Court's 5-2 majority opinion was written by Justice Evelyn Lundberg Stratton.
The case involved four Akron children who were found to be neglected and dependent after their mother abandoned them, and their drug-dependent father, Charles Brown, was determined to be providing substandard care. In July 2003, the Summit County Juvenile Court awarded temporary custody of the children to the Summit County Children Services Board (SCCSB), which placed them together in the same foster home.
In October 2004, after the children's mother voluntarily relinquished her parental rights and the father remained drug-dependent and without permanent housing or employment, the SCCSB asked the court to award permanent custody to the county with the intention of placing the children for adoption. Both the father and an attorney representing the children in the case filed objections, and in March 2005 the juvenile court conducted a hearing on the SCCSB motion for permanent custody.
At that hearing, the SCCSB urged the court to grant permanent custody of the children to the county so that they could move on from foster care to adoption. The lawyer representing the children and a court-appointed guardian ad litem asserted that it was unlikely the county would be able to place all four siblings in the same adoptive home, and urged the court instead to place them in a “planned permanent living arrangement” with their current foster mother – who was willing to keep all four children indefinitely, but not to adopt them. Despite the SCCSB's opposition to that disposition, the juvenile court ruled that the children's best interest would be served by keeping them together indefinitely in their current foster home, and issued an order placing them with the foster mother in a planned permanent arrangement.
The SCCSB appealed the trial court's action to the 9th District Court of Appeals, arguing that the applicable section of state law authorizes a juvenile court to place children who are in the temporary custody of a child services agency into a planned permanent living arrangement only if the child services agency requests that disposition. The 9th District affirmed the action of the juvenile court, but certified that its holding was in conflict with an earlier decision of the 8th District in a similar case, In re M.W. The Supreme Court agreed to hear arguments to resolve the conflict between districts.
In today's majority opinion, the Court reversed the 9th District and remanded the case to the juvenile court for further proceedings. Justice Stratton noted that major state and federal legislation has been enacted since 1988 with the purpose of reducing the number of abused, neglected and dependent children who spend three, four or more years “drifting” in temporary foster care and facilitating the prompt placement of such children into permanent adoptive homes when a court determines that returning the children to the custody of a natural parent would not be in their best interest.
As part of Ohio's efforts to address ‘foster care drift,' Justice Stratton wrote, the legislature enacted R.C. 2151.353(A), which gives juvenile courts six options for placement of children who have been adjudicated to be abused, neglected or dependent. She noted that the option of a “planned permanent living arrangement,” which gives legal custody to a child services agency without terminating parental rights and allows the agency to keep the affected child in foster care or some other non-adoptive status, is subject to clear and significant statutory limitations.
Rejecting the 9th District's statutory interpretation in this case, Justice Stratton quoted with approval from the 8th District's holding in In re M.W. that: “The wording of R.C. 2151.353(A)(5) is so unambiguous that we would be hard-pressed to find a clearer indication of [legislative] intent. The statute states in no uncertain terms that the court may order a planned permanent living arrangement (1) [if] the county requests it, (2) [if] the planned permanent living arrangement would be in the best interest of the child and (3) [if] one of the factors in subsections (A)(5) (a)-(c) applies.”
Justice Stratton cited public policy interests advanced by the strict application of these statutory requirements, and pointed to language in R.C. 2151.415 that she said reinforces the legislative intent that a permanent living arrangement such as the one approved by the lower courts in this case “is to be considered as a last resort for the child, more evidence that the General Assembly's goal is to avoid allowing children to languish indefinitely in foster care.”
“A planned permanent living arrangement places a child in limbo, which can delay placement in a permanent home. Because the General Assembly intended to encourage speedy placement, R.C. 2151.353 places limitations upon the use of planned permanent living arrangements,” wrote Stratton. “Moreover, although life with the foster mother in this case appears to be a loving and enriching one, the relationship lacks the permanency envisioned by the legislature. The foster mother could return the children at any point to the custody of children's services. Even assuming that the children would be able to live with the foster mother until they reach the age of majority, they will ‘age out' of foster care. Children who age out of foster care lack the emotional support system and the financial stability of a permanent custody or adoptive relationship. Children who age out of foster care have no place to return to for holidays, no permanent family to lean on as they enter the adult world. Thus, the General Assembly's grant of authority to request a planned permanent living arrangement, a temporary fix for foster children, solely to the CSB is in line with creating permanency and stability for these children.”
Justice Stratton's opinion was joined by chief Justice Thomas J. Moyer and Justices Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger.
Justice Paul E. Pfeifer entered a dissent that was joined by Justice Alice Robie Resnick in which he disagreed with the majority's holding that the requirements of R.C. 2151.353(A)(5) apply to all juvenile court orders involving planned permanent living arrangements.
“R.C. 2151.414 and 2151.415(F) apply to modifications and terminations of initial dispositional orders,” wrote Justice Pfeifer. “Among the dispositional orders permitted by R.C. 2151.415(A) is ‘(5) An order that the child be placed in a planned permanent living arrangement.' Important to me, but apparently not to the majority, R.C. 2151.415(F), which authorizes a court to order a planned permanent living arrangement, does not require the court to receive a request from a child services agency. This omission makes sense. When a child is originally adjudicated abused, dependent or neglected, when R.C. 2151.353(A)(5) controls, a children services agency is often in the best position to determine whether a permanent placement is necessary. By the time modifications or terminations of initial orders are necessary, when R.C. 2151.415(F) is supposed to control, the court is in the best position to determine whether a permanent placement is in the best interests of the child.”
Contacts
Richard A. Reece Jr., 330.253.9011, for the
Brown children.
Jason A. Macke, 614.292.9177, for the Justice for Children Project.
Phillip D. Bogdanoff, 330.643.2791, for the Summit County Children Services Board.
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