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Lorain County judge committed plain error in child custody case
TRACEY BLAIR
Legal News Reporter
Published: July 10, 2017
A Lorain County juvenile court committed plain error by taking four children from their mother’s custody without holding a proper adjudicatory hearing, the 9th District Court of Appeals recently ruled.
M.S., a mother of 12 pregnant with her 13th child, appealed a judgment adjudicating her youngest children neglected and dependent. Two of the children were placed in the legal custody of paternal cousins, and the other two with their father.
According to appellate records, Lorain County Children Services filed a complaint in December 2015 alleging the mother dropped her 3-year-old and 1-year-old off at a relative’s home without adequate supplies and did not return to get them or their two older siblings.
The complaint stated the mother has significant mental health issues, is unemployed and has a bedbug-infested apartment with no food.
The adjudicatory and dispositional hearings were scheduled for April 13, 2016. Mother had shown up at the justice center. However, instead of reporting to the magistrate’s courtroom, she went to the prosecutor’s office to try and resolve her multiple outstanding warrants for failure to pay child support.
She was immediately arrested on the warrants and placed in a holding cell.
The magistrate assumed Mother would request a continuance and sua sponte denied any presumptive request.
Meanwhile, the attorneys present at the disposition hearing had agreed that the children would remain with their father and cousins. Mother did not sign the agreement, and there was nothing in the record showing she stipulated to a finding that the children were dependent and/or neglected.
The agency case worker testified at the hearing as to what all parties other than the mother agreed were in the best interest of the children.
The magistrate issued a decision reiterating the agency’s findings. The trial court adopted the magistrate’s decision the same day. The judge stated that legal custody of the two youngest children was granted to the father, and awarded legal custody of the others to the paternal cousins.
The juvenile court held a hearing on Mother’s objections, but adhered to its prior order.
In a 3-0 opinion, the appellate court reversed and remanded the case.
“Because it is clear from the transcript that the juvenile court failed to conduct an adjudicatory hearing prior to awarding custodial dispositions, this Court sustains the first assignment of error on the basis of plain error,” wrote 9th District Judge Julie Schafer.
Judge Schafer noted that R.C. 2151.35(B)(1) mandates that a dispositional hearing must be distinct from the adjudicatory hearing.
“In this case, the juvenile court purported to hold an adjudicatory hearing prior to proceeding to disposition,” she added. “However, a review of the record indicates that the trial court and parties present proceeded directly to disposition, without first presenting any evidence to establish that the children were dependent and neglected. The magistrate’s findings of facts as to adjudicatory issues merely reiterate the allegations in LCCS’s complaint, despite the lack of such evidence or stipulation on the record.”
Mother also argued that counsel was ineffective for failing to request she be transported from her holding cell to the courtroom to participate in the hearings. That argument was rendered moot.
Appellate judges Donna Carr and Lynne Callahan concurred.
The case is cited In re C.S., 2017-Ohio-4345.