In re J.T.
| Decision Date | 05 February 2019 |
| Docket Number | No. 18CA9,18CA9 |
| Parties | In the MATTER OF: J.T., Alleged Unruly Child |
| Court | Ohio Court of Appeals |
Dana E. Gilliland, Wellston, Ohio, for Appellant.
Timothy E. Forshey, Jackson, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Appellant, the child's biological mother, appeals the trial court's judgment that granted Appellee, Jackson County Department of Job and Family Services, permanent custody of her teenage son. Appellant raises two assignments of error. She first contends that the trial court deprived her of her parental rights without due process of law. Appellant asserts that the trial court did not provide her with adequate notice and a meaningful opportunity to be heard before the court granted Appellee permanent custody of her child. We agree. The trial court did not comply with the procedural protections developed to ensure that a parent facing termination of parental rights receives adequate notice of the permanent custody hearing. Accordingly, we sustain appellant's first assignment of error and reverse the trial court's judgment. Appellant's second assignment of error is moot.
{¶2} On September 15, 2017, the child's stepmother filed a complaint that alleged the child is unruly. The complaint averred that the child currently lives with his father and stepmother. The complaint made no mention of Appellant, the child's biological mother. The court later found "that the Summons and Notice heretofore issued have been duly served upon the parents of said child."
{¶3} At a pretrial hearing, the court explained that it learned that the father and stepmother had surrendered the child and stated that they could no longer manage the child. The court stated that it would "be changing the nature of the case" and entered a finding that the child is dependent. Thus, although the case began as an unruly child complaint, the trial court subsequently adjudicated the child dependent and placed the child in Appellee's temporary custody.
{¶4} About eight months later, Appellee filed a motion to modify the disposition to permanent custody. Appellee alleged that the child should not be placed with either parent. Appellee asserted that the child's father and stepmother told Appellee that they no longer want the child in their home. Appellee claimed that the child's biological mother, Appellant, "has been in contact with [the] agency once."
{¶5} Appellee's motion for permanent custody included a certificate of service stating that Appellee served the motion upon the child's guardian ad litem and upon "Josh Price, attorney for mother." The record shows, however, that the court appointed "Joshua Price" as counsel for the child.
{¶6} Appellee filed a request for service along with its permanent custody motion and asked the clerk to serve Appellant "with a copy of the motion requesting modification of temporary commitment to permanent commitment by personal service, at 688 Ridge Gap Road, Rockwood, TN 37854." The clerk's office then sent a request for service to the Roane County Sheriff's Department to personally serve Appellant with the "attached Summons, Motion Requesting Modification of Temporary Commitment to Permanent Commitment, * * * and Notice of Permanent Custody hearing set for September 28, 2018, at 9:00 a.m."
{¶7} The "Notice of Permanent Custody" states that the court issued the notice to the attorneys, guardian ad litem, Appellee, the father, and Appellant that reads: "You are hereby notified that the Court has set the above-captioned matter for permanent custody hearing on September 28, 2018, at 9:00 A.M." A deputy clerk signed the notice. The notice does not indicate how it was served upon the parties and does not contain any addresses for the parties.
{¶8} The request to the Roane County Sheriff's Department was returned with a handwritten note that reads: "Address provided is not in Roane County." Another handwritten note indicates that the address is in Cumberland County.
{¶9} On July 5, 2018, the clerk's office issued a request for service to the Cumberland County Sheriff's Department, and asked the Sheriff's Office to make personal service upon Appellant at 688 Ridge Gap Road, Rockwood, TN 37854."
{¶10} On August 20, 2018, Appellee requested the clerk to serve Appellant by publication. Appellee submitted an affidavit for service by publication that reads:
Tara Gilliland, * * * states that the present addresses of [the father and Appellant] are unknown to affiant and cannot with reasonable diligence be ascertained. Affiant further states that efforts made to learn the address of said parties include the following: the computer database searches available. Affiant further states that service of summons cannot be made * * *.
{¶11} The clerk requested "The Telegram," located in Jackson, Ohio, to publish a notice that reads as follows:
[The father, the stepmother, and Appellant] will take notice that a Motion for Modification of Temporary Commitment to Permanent Commitment has been filed in Jackson County, Ohio Juvenile Court concerning the child * * * that said Motion will be set for hearing before the said Court in Jackson County, Ohio on the 28th day of September, 2018, at 9:00 a.m. at Juvenile Court, Jackson County Court House, 350 Portsmouth Street, Ste. 101, Jackson, Ohio 45640; and [the parties] are ordered to appear before said Court on said date and show cause why the Motion should not be granted.
The notice also included the following statement:
Any party is entitled to a lawyer in all proceedings in Juvenile Court. If a party cannot afford a lawyer and meets certain requirements, the Court will appoint one upon request. If you wish to have a lawyer, but believe you cannot afford one, call 740-286-6405 at Juvenile Court at Jackson, Ohio between the hours of 8:00 a.m. and 4:00 p.m. Monday through Friday.
{¶12} The Telegram later certified that it published the notice on August 29, 2018.
{¶13} On September 28, 2018, the court held a hearing to consider Appellee's motion for permanent custody. At the start, Appellee's counsel stated that he did not "believe the child's mother, [Appellant], has really had any contact with [Appellee] other than once since the case has been going." The court stated: "Well, we've had no contact with her from the court to ask for counsel or ...other than... we haven't had any contract from her, have we?" The court reporter responded, "No." The court then proceeded with the hearing.
{¶14} At the hearing, caseworker Tara Gilliland stated that she had one contact with Appellant. Gilliland explained that on May 29, 2018, she sent a letter to Appellant that requested Appellant to contact the caseworker about Appellant's child. Gilliland stated that about one week later, Appellant contacted her. Gilliland indicated that when Appellant called, Gilliland had been preparing for a home visit and was not "able to verify any information at that time." Gilliland stated that Appellant "asked what was happening with [the child]" and whether the father "was ok; if there was a reason why he didn't have [the child], but that was about as far as the conversation had got." Gilliland further explained that when she spoke with Appellant, Appellant did not indicate that she would like to have custody of the child.
{¶15} Gilliland related that Appellant spoke with Gilliland's supervisor, as well, but Appellant "refused to give us a call back number and said that she would call back." Gilliland testified that she later sent Appellant another letter and asked Appellant to contact the agency. Gilliland stated that Appellant did not have any additional contact with Appellee.
{¶16} On October 9, 2018, a return of personal service was filed that indicated that on September 25, 2018, the Cumberland County Sheriff had personally served Appellant.
{¶17} On October 22, 2018, the trial court granted Appellee's motion for permanent custody. The court found that Appellant "was served, but did not appear." The court additionally determined that Appellant "only had contact with the caseworker once and has not appeared at any hearings." The court further stated that (Emphasis sic.).
{¶18} The court determined that the child's father and stepmother "decide[d] it is better to hike the Appalachian Trail than engage in case plan services." The court noted that the father and stepmother informed Appellee that they did not want the child to return to their home. The court found that the child could not be placed with either parent and that it is in his best interest to place the child in Appellee's permanent custody.
{¶19} On October 23, 2018, Appellee requested the court to enter a reasonable efforts finding. Appellee asserted that the caseworker attempted to contact Appellant "by sending letters." Appellee alleged that Appellant did call once, but she did not provide any contact information.
{¶20} Two days later, the court made the reasonable efforts finding that Appellee requested and made its finding "effective as of September 27, 2018." The court found that the caseworker attempted to contact Appellant and that although Appellant called Appellee, the mother did not give Appellee any contact information.
{¶21} On October 29, 2018, the court appointed counsel for the mother for purposes of appeal. This appeal followed.
{¶22} Appellant timely appealed and raises two assignments of error:
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