Court of Appeals of Ohio, First District, Hamilton
From: Hamilton County Juvenile Court Trial No. F-13-1547.
Christopher P. Kapsal for Appellant Mother,
Raymond T. Faller, Hamilton County Public Defender, and
Marjorie Davis, Assistant Public Defender, Guardian ad Litem
for Y.D., Y.D., and Y.D.
Mother appeals the trial court's judgment terminating her
parental rights, and granting the Hamilton County Department
of Job and Family Services ("HCJFS") permanent
custody of Y.D. ("Ya.D."), Y.D. ("Yr.D.")
and Y.D. ("Ye.D."). We agree with Mother that the
issue of permanent custody was not properly before the trial
court. We reverse and remand for further proceedings.
Posture and Facts
HCJFS's involvement with these children began in 2013.
Following allegations that the children's extended family
members were physically and sexually abusive, the children
were adjudicated dependent and placed in HCJFS's
temporary custody. The children were eventually returned to
Mother, with protective orders prohibiting her from allowing
the children's grandmother or uncle to have contact with
them. There was evidence that grandfather had been sexually
abusive to family members, but Mother represented to the
court that grandfather did not live in town and so the
protective orders did not extend to him.
On April 22, 2015, after HCJFS learned that Mother was
allowing her abusive family members to have access to her
children, HCJFS filed a new complaint alleging that the
children were abused and dependent. HCJFS requested that the
court (1) grant temporary custody of the children to HCJFS,
(2) award legal custody to a suitable relative, or (3) impose
protective supervision orders. HCJFS later amended the
complaint to add allegations that grandfather had slept in
bed with Ya.D. and had touched her inappropriately.
Following a hearing, the magistrate adjudicated Ya.D.
neglected and dependent, and adjudicated Yr.D. and Ye.D.
dependent, finding that the children had almost daily contact
with their abusive grandparents in the children's home.
The magistrate placed Ya.D. in the temporary custody of
HCJFS. He returned Yr.D. and Ye.D. to their mother with
protective orders prohibiting contact with the grandparents.
The trial court rejected the magistrate's decision
remanding custody of Yr.D. and Ye.D. to their mother. In its
decision, the court detailed the rampant sexual and physical
abuse attributed to the children's grandparents and uncle
that had taken place in the children's home. The abuse
had continued even after the court's protective orders
prohibiting Mother from allowing the children to have contact
with these family members. The trial court remanded the cause
to the magistrate to take additional evidence, and (1) to
issue a dispositional order or (2) "if the magistrate is
satisfied now, based on evidence that the children will be
safe in mother's care, the Magistrate may again order
them returned to Mother." The court indicated that
temporary custody might be the most appropriate choice, and
that it might consider awarding permanent custody to HCJFS if
The magistrate conducted a dispositional hearing in
accordance with the trial court's mandate. That same day,
the children's guardian ad litem ("GAL") filed
a motion to modify temporary custody to permanent custody for
all three children. The parties were aware that the hearing
was not on the permanent custody motion, and was only on the
scope of the remand, which related to the April 22, 2015
complaint. Further, the parties had not been properly served
with the permanent custody motion.
Mother and Mother's Catholic Charities counselor
testified at the remanded dispositional hearing. Based on
their testimony, the magistrate determined that Mother would
be able to keep her children safe. He therefore returned all
three children to Mother's custody, and dismissed the
GAL's motion to modify temporary custody to permanent
The GAL objected to the magistrate's decision arguing
that the decision to return the three children to their
Mother was against the manifest weight of the evidence and
was not in the children's best interest.
The trial court conducted a hearing on the objection, but
took no further evidence. It found that all three children
were at risk of sexual and physical abuse by members of
Mother's extended family. The court also found that
Mother had proven she was unable or unwilling to protect her
children from these abusers, and that it was not in the
children's best ...