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In re B.Y.

Court of Appeals of Ohio, Ninth District, Wayne

March 9, 2017



          CHRISTINA I. REIHELD, Attorney at Law, for Appellant.

          DANIEL R. LUTZ, Prosecuting Attorney, and MELODY L. BRIAND, Assistant Prosecuting Attorney, for Appellee.


          DONNA J. CARR, JUDGE

         {¶1} Appellant, Jessica B. ("Mother"), appeals from a judgment of the Wayne County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child, and placed the child in the permanent custody of Wayne County Children Services ("CSB"). This Court reverses and remands.


         {¶2} Appellant is the mother of B.Y., born January 13, 2012. The father of the child was not determined.

         {¶3} On June 23, 2015, CSB filed a dependency complaint regarding B.Y. based upon allegations of heroin use by Mother. Mother stipulated to a finding of dependency under R.C. 2151.04(C) at the adjudication, and she subsequently agreed to a disposition of temporary custody to CSB. A brief placement with the maternal grandmother was unsuccessful, and the agency soon placed B.Y. with a foster family.

         {¶4} The case plan adopted by the trial court required Mother to address substance abuse, basic needs, recommendations from a psychological evaluation, and housing. Mother was offered supervised visits for one-to-two hours weekly. At Mother's request, her boyfriend was included on the case plan. He had similar objectives and visitation provisions, but accomplished little on his case plan.

         {¶5} On May 23, 2016, CSB moved for permanent custody. In that motion, CSB alleged that the child could not be placed with a parent within a reasonable time or should not be placed with a parent, see R.C. 2151.414(B)(1)(a), supported by allegations under R.C. 2151.414(E)(1), (E)(2), (E)(4), and (E)(11), along with a second-prong claim that permanent custody was in the best interest of the child. See R.C. 2151.414(D)(1).

         {¶6} Mother came to court on the day set for the permanent custody hearing and requested a continuance. She had been served with notice of the hearing by publication and only saw the motion for permanent custody that morning. The court did not grant an immediate continuance, but agreed to continue the hearing until a second day to allow Mother to present evidence on her own behalf. CSB presented the bulk of its evidence on the first day and, after the admission of a stipulated exhibit, the agency rested its case on the second day.

         {¶7} Thereupon, Mother's attorney announced that Mother would not call any witnesses, as anticipated, but rather offered a signed copy of a pre-printed Parental Stipulation to Permanent Custody form. According to counsel, she did so in order that "the current foster placement can move forward with adopting [B.Y.]." The trial judge stated: "[W]e have already heard from a number of witnesses and the State has rested at this point. I will go ahead and accept this form and make it part of the case file but I feel like at this point I need to rule on the merits of the case." The trial judge then asked three questions of Mother: (1) whether she had any questions about the form, (2) whether she was under the influence of anything at the present time, and (3) whether anyone had promised her anything or made threats against her in order to sign the form, to all of which Mother answered in the negative, adding only "The paper, I did it for [B.Y.]" The court heard a brief statement by the guardian ad litem in which she reiterated her prior recommendation of permanent custody, and the case was submitted for decision. Thereafter, in the judgment entry, the trial judge indicated that she accepted Mother's Stipulation to Permanent Custody, granted CSB's motion for permanent custody, and terminated the parental rights of Mother and the unknown father.

         {¶8} In granting CSB's motion for permanent custody, the trial court found that the child could not be placed with a parent within a reasonable time or should not be placed with a parent, R.C. 2151.414(B)(1)(a), and supported it with findings under R.C. 2151.414(E)(4) and (E)(11). The court also found that permanent custody was in the best interest of BY. See R.C. 2151.414(D)(1). At the same time, the trial court found that CSB had failed to meet its burden of proof regarding R.C. 2151.414(E)(1) and (E)(2). Mother has appealed and has assigned two errors for review.




         {¶9} In her first assignment of error, Mother claims the trial court erred in failing to engage in a dialogue with her to verify that she understood the consequences of a stipulation to permanent custody, and in relying upon such stipulation when it granted permanent custody to CSB to terminate her parental rights. For the reasons set forth below, this Court sustains this assignment of error.

         {¶10} At the outset, this Court observes that there is no legislative guidance on the requirements for a voluntary surrender of parental rights in juvenile court where the child has been adjudicated neglected or dependent. See In re Miller 61 Ohio St.2d 184, 189 (1980); Kozak v. Lutheran Children's Aid Soc, 164 Ohio St. 335, 341-342 (1955). Consequently, this Court looks to decisional law to address this question.

         {¶11} Parents have a "fundamental liberty interest" in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Murray, 52 Ohio St.3d 155, 157 (1990). The right to raise one's children is an "essential" and "basic civil right[]" that is "far more precious * * * than property rights[.]" (Internal quotations and citations omitted.) Stanley v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). This fundamental liberty interest carries due process protections. Santosky at 753; In re Shaeffer Children, 85 Ohio App.3d 683, 689-690 (3d Dist.1993).

For all its consequence, "due process" has never been, and perhaps can never be, precisely defined. * * * Rather, [due process] expresses the requirement of "fundamental fairness, " a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.

Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina, 452 U.S. 18, 24-25, (1981).

         {¶12} Since parents have constitutionally protected custodial rights, any action by the state that affects these parental rights must be conducted pursuant to procedures that are fundamentally fair. Santosky, 455 U.S. at 753-754; In re Adoption of Mays,30 Ohio App.3d 195, 198 (1st Dist.1986). In construing "fundamental fairness" in the context of a parental rights termination proceeding, this Court notes that it has been said that parents "'must be afforded every procedural and substantive protection the law allows[, ]'" In re Hayes,79 Ohio St.3d 46, 48 (1997) quoting In re Smith,77 Ohio App.3d 1, 16 (6th Dist.1991), and the termination of parental rights should only be used as a "last resort." In re Cunningham, 59 Ohio St.2d 100, 105 (1979). This is because when the State initiates a parental rights termination proceeding, "the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked ...

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