In re M.M.E.W.
| Docket Number | 22CA22 |
| Decision Date | 13 June 2023 |
| Citation | 2023 Ohio 2039 |
| Parties | In the Matter of: M.M.E.W. |
| Court | Ohio Court of Appeals |
Laura Silwani, Marietta, Ohio, for Appellant.
Nicole Coil, Washington County Prosecuting Attorney, and Kelsey R Riffle, Washington County Assistant Prosecutor, Marietta Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Appellant, Daniel Ratliff, appeals a decision of the Washington County Court of Common Pleas, Juvenile Division that granted Washington County Department of Job and Family Services ("the agency") permanent custody of his 14-year-old child, M.M.E.W. Appellant asserts that the trial court erred by failing to dismiss the agency's permanent-custody motion. Appellant states that he never was served with the initial dependency complaint or provided any notice of the dependency proceeding. He claims that this failure to serve him with notice of the adjudicatory and dispositional proceedings renders the trial court's judgment placing the child in the agency's temporary custody void and leaves the court without jurisdiction to proceed with the agency's permanent-custody motion. Appellant further argues that the trial court should have dismissed the agency's permanent-custody motion due to the agency's failure to include him in the family case plan. Appellant charges that as a parent, the agency was required to include him in the case plan.
{¶2} After our review of the record and the applicable law, we do not find any merit to appellant's assignment of error. Therefore, we affirm the trial court's judgment.
{¶3} On February 16, 2021, the trial court granted the agency ex parte emergency custody of the child. The next day, the agency filed a complaint that alleged the child is a dependent child. The attached statement of facts indicated the following: (1) the Washington County Sheriff's Department contacted the agency after arresting the child's legal guardian, Angel Granger,[1] for domestic violence involving one of the other children under Granger's guardianship; (2) no relatives were available for placement; and (3) the child's mother no longer has custody of the child. Neither the complaint nor the statement of facts contained a status for the child's father.
{¶4} The court issued a summons to Granger and appointed a guardian ad litem for the child. Both Granger and the child's mother subsequently filed separate motions for custody of the child.
{¶5} On April 20, 2021, the court adjudicated the child a dependent child and placed her in the agency's temporary custody pending a dispositional hearing. The court later entered a dispositional order that placed the child in the agency's temporary custody.
{¶6} On June 13, 2022, the agency filed a motion to modify the disposition to permanent custody. The agency alleged that the child has been in its temporary custody for 12 or more months of a consecutive 22-month period and that placing the child in its permanent custody is in her best interest. The agency requested that the motion be served upon the biological mother and upon the unknown father. A few weeks later, the agency asked the court to serve the motion upon appellant at an address located in Tucson, Arizona. On July 14, 2022, appellant received service of the motion.
{¶7} On July 20, 2022, the court appointed counsel for appellant. A week later, appellant's counsel filed a notice of appearance and a discovery demand.
{¶8} On September 28, 2022, the trial court held a hearing to consider the agency's permanent custody motion. Appellant's counsel appeared, but appellant did not.
{¶9} Caseworker Julia Brown testified as follows. On February 16, 2021, law enforcement officers asked the agency to respond to Granger's home. Officers had arrested Granger for committing domestic violence, and no relatives were available to care for the child.
{¶10} At the time, Granger was the child's guardian pursuant to an April 2018 West Virginia court order. The court order indicated that the mother was using illegal substances and living in a tent, while the father was incarcerated in a Georgia prison.
{¶11} Granger now has decided that placing the child in the agency's permanent custody is in her best interest.
{¶12} Appellant has not had any contact with the agency, even though in July 2022, Brown sent appellant a letter that asked him to contact the agency.
{¶13} During appellant's cross-examination of Brown, counsel asked Brown about the agency's failure to serve him with the initial complaint. Brown indicated that the agency did not serve him because the child was not in his custody but, rather, was in Granger's custody.
{¶14} Granger testified that her physical health no longer allows her to properly care for the child and stated that she supports the agency's permanent custody motion.
{¶15} The child's guardian ad litem testified and likewise recommended that the court place the children in the agency's permanent custody.
{¶16} During closing argument, appellant's counsel stated that appellant currently lives in Arizona and has not had a role in the proceedings. She believes that he lives in transitional housing. She objected to the agency's failure to include appellant in the initial stage of the dependency proceedings and argued that Ohio law required the agency to include appellant in the family case plan. Counsel asked the court to dismiss the case due to failing to serve appellant with a copy of the initial complaint and to include him in the initial stages.
{¶17} On November 8, 2022, the trial court granted the agency permanent custody of the child. The trial court found that the child has been in the agency's temporary custody for 12 or more months of a consecutive 22-month period and that placing the child in the agency's temporary custody is in her best interest. The court noted that the child's legal guardian consented, the mother has not seen the child since December 2020, the mother's home study was denied due to four previous, substantiated physical-abuse and neglect findings, and appellant has not had any contact with the child throughout the pendency of the case. The court did not specifically address appellant's motion to dismiss.[2] This appeal followed.
{¶18} In his sole assignment of error, appellant argues that the trial court erred by granting the agency permanent custody of the child. He contends that the trial court instead should have dismissed the February 17, 2021 complaint due to the agency's failure to serve him with the complaint, to add him as a party to the dependency proceedings, and to include him in the case plan. Appellant asserts that all of these failures deprived him of due process of law.
{¶19} The Due Process Clause of the Fifth Amendment to the United States Constitution, as applicable to the states through the Fourteenth Amendment, provides: "No person shall * * * be deprived of life, liberty, or property, without due process of law." "[Parents' interest in the care, custody, and control of their children 'is perhaps the oldest of the fundamental liberty interests recognized by this Court.'" In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one's "child is an 'essential' and 'basic' civil right." In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (). Thus, "parents who are 'suitable' have a 'paramount' right to the custody of their children." B.C. at ¶ 19, quoting In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio St.3d at 157.
{¶20} Additionally, the Ohio Supreme Court has described the permanent termination of parental rights as" 'the family law equivalent of the death penalty in a criminal case.'" Hayes, 79 Ohio St.3d at 48, quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Consequently, courts must afford parents facing the permanent termination of their parental rights" 'every procedural and substantive protection the law allows.'" Id., quoting Smith at 16; accord B.C. at ¶ 19. Thus, because parents possess a fundamental liberty interest in the care and custody of their children, the state may not deprive parents of their parental rights without due process of law. In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 16; e.g., In re AG., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, ¶ 12; In re M.H., 4th Dist. Vinton No. 11CA683, 2011 -Ohio-5140, ¶ 49-50. Moreover, a parent's right to due process "does not evaporate simply because" that parent has "not been [a] model parent[] or [has] lost temporary custody of their child to the State." Santosky, 455 U.S. at 753.
{¶21} Although "due process" lacks precise definition courts have long held that due process requires both notice and an opportunity to be...
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