Murray, In re, s. 89-523

Decision Date03 July 1990
Docket NumberNos. 89-523,89-525,s. 89-523
Citation52 Ohio St.3d 155,556 N.E.2d 1169
PartiesIn re MURRAY et al. In re MILLER. In re BLACKBURN CHILDREN.
CourtOhio Supreme Court

Syllabus by the Court

An adjudication by a juvenile court that a child is "neglected" or "dependent" as defined in R.C. Chapter 2151 followed by a disposition awarding temporary custody to a public children services agency pursuant to R.C. 2151.353(A)(2) constitutes a "final order" within the meaning of R.C. 2505.02 and is appealable to the court of appeals pursuant to R.C. 2501.02.

This appeal is before the court from a judgment entered by the Court of Appeals for Stark County wherein it consolidated three separate appeals prosecuted to that court from orders issued by the Court of Common Pleas of Stark County, Domestic Relations Division, which exercises juvenile court jurisdiction pursuant to R.C. 2301.03(H) and, hereinafter, is referred to as "juvenile court."

On October 14, 1986, an employee of the Stark County Department of Human Services ("SCDHS") filed a complaint in the juvenile court (case No. 62114) alleging that Tommy, Katie, and Cassie Murray were dependent children pursuant to R.C. 2151.04(C) in that two of the children had allegedly received injuries inflicted by their stepfather. That same day, the children were removed from the custody of their mother and a temporary commitment was made to SCDHS, which also sought temporary custody of the children.

Following several evidentiary hearings, a referee's report was filed on December 17, 1987 awarding temporary custody of the children to SCDHS. Both parents filed written objections to such report and arguments were heard thereon by the court. On May 27, 1988, the court filed its order overruling the parents' objections and adopted the referee's report.

On June 10, 1988, a complaint was filed by SCDHS in the juvenile court (case No. 66470) alleging that Topeka Miller was a neglected child pursuant to R.C. 2151.03(C) in that she was in need of medical care but was unable to obtain such care because her mother had left her in the care of the child's great aunt and the mother was living in Florida. Temporary placement for Topeka was made with SCDHS and medical attention was sought. A hearing was held on August 1, 1988, and on August 5, 1988, Topeka was adjudicated a neglected child and temporary custody of the child was awarded to SCDHS.

On July 13, 1988, SCDHS filed a complaint in the juvenile court (case No. 66652) alleging that Quentin and Brandon Blackburn were dependent children pursuant to R.C. 2151.04(A) in that their mother was, apparently, to be hospitalized that day for psychiatric problems, thereby rendering the children without proper care and support. Emergency custody of the children was granted to SCDHS. On August 5, 1988, a judgment was entered by the court finding the children to be dependent, but making no dispositional order. 1

Separate appeals were taken to the Court of Appeals for Stark County under Nos. CA-7634 (Miller), CA-7575 (Murray), and CA-7636 (Blackburn) and were consolidated therein for review. On February 27, 1989 (1989 WL 23621) the court of appeals entered a single opinion and judgment entry dismissing the appeals without adjudicating the merits upon the basis that the orders appealed from were not "final" and, thus, the court was without jurisdiction. Finding its decision to be in conflict with the judgment of the Court of Appeals for Trumbull County in In re Becker (Mar. 9, 1984), Trumbull App. No. 3301, unreported, and the judgment of the Court of Appeals for Greene County in In re Smith (1982), 7 Ohio App.3d 75, 7 OBR 88, 454 N.E.2d 171, the appellate court certified the record of the case to this court for review and final determination.

Gutierrez & Mackey Co., L.P.A., John N. Mackey and Kathleen O. Tatarsky, Canton, for appellant Connie Murray Hardman.

Marla L. Mitchell, Akron, for appellants Yvonne Miller, Kelly Blackburn and Quentin Blackburn, Sr.

Robert D. Horowitz, Pros. atty., and Ronald Mark Caldwell, Canton, for appellee.

STEPHENSON, Judge, Court of Appeals.

Section 3(B)(2), Article IV of the Ohio Constitution provides, inter alia, that courts of appeals "shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *."

R.C. 2501.02 provides, inter alia, as follows:

"In addition to the original jurisdiction conferred by Section 3 of Article IV, Ohio Constitution, the court shall have jurisdiction:

"Upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the court of appeals within the district, including the finding, order, or judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent, for prejudicial error committed by such lower court. " (Emphasis added.)

The issue posited for review herein is whether a finding of child neglect or dependency, coupled with a temporary commitment of that child to the custody of the department of human services pursuant to R.C. 2151.353(A)(2), is a final order sufficient to invoke appellate jurisdiction of the court of appeals.

A "final order" is defined, inter alia, in R.C. 2505.02 as "[a]n order that affects a substantial right in an action which in effect determines the action and prevents a judgment * * *." (Emphasis added.)

The United States Supreme Court has stated that the right to raise one's children is an "essential" and "basic civil right." See Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551; Meyer v. Nebraska (1923), 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. Parents have a "fundamental liberty interest" in the care, custody, and management of the child. Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599. Further, it has been deemed "cardinal" that the custody, care and nurture of the child reside, first, in the parents. H.L. v. Matheson (1981), 450 U.S. 398, 410, 101 S.Ct. 1164, 1171, 67 L.Ed.2d 388; Quilloin v. Walcott (1978), 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511; Stanley, supra, 405 U.S. at 651, 92 S.Ct. at 1212; Prince v. Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645.

Similarly, this court has long stated that parents who are suitable persons have a "paramount" right to the custody of their minor children. In re Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293, 297, 369 N.E.2d 1047, 1051-1052; Clark v. Bayer (1877), 32 Ohio St. 299, 310. Numerous reported decisions demonstrate that this principle has become the foundation for child custody cases faced by lower courts. See, e.g., In re Fassinger (1974), 43 Ohio App.2d 89, 91-92, 72 O.O.2d 292, 294, 334 N.E.2d 5, 8; In re Messner (1969), 19 Ohio App.2d 33, 39-40, 48 O.O.2d 31, 35, 249 N.E.2d 532, 536; In re DeVore (1959), 111 Ohio App. 1, 3, 13 O.O.2d 376, 377, 167 N.E.2d 381, 382; In re Duffy (1946), 78 Ohio App. 16, 18, 33 O.O. 381, 382, 68 N.E.2d 842, 843-844; Ex Parte Combs (C.P.1958), 77 Ohio Laws Abs. 458, 460, 150 N.E.2d 505, 507; In re Zerick (J.C.1955), 74 Ohio Law Abs. 525, 530, 57 O.O. 331, 333, 129 N.E.2d 661, 665; In re Routa (P.C.1955), 71 Ohio Law Abs. 574, 576, 2 O.O.2d 80, 130 N.E.2d 453, 454; In re Swentosky (P.C.1937), 25 Ohio Law Abs. 601, 602, 10 O.O. 150, 151, 1 Ohio Supp. 37, 38. Accordingly, it is manifest that parental custody of a child is an important legal right protected by law and, thus, comes within the purview of a "substantial right" for purposes of applying R.C. 2505.02.

As aforesaid, however, in order to be final and appealable the temporary custody order must also, in effect, determine the action and prevent a judgment. Initially, we note that the designation of the custody award as "temporary" is not controlling. Generally, the question of whether an order is final and appealable turns on the effect which the order has on the pending action rather than the name attached to it, or its general nature. Harvey v. Cincinnati Civil Serv. Comm. (1985), 27 Ohio App.3d 304, 305, 27 OBR 360, 362, 501 N.E.2d 39, 41; Systems Construction, Inc. v. Worthington Forest, Ltd. (1975), 46 Ohio App.2d 95, 96, 75 O.O.2d 79, 80, 345 N.E.2d 428, 429.

Appellants contend that the effect of such a custody order is to terminate the action because such order can, and does, last for a considerable period of time. Ample support is lent to this argument by reviewing the record in No. CA-7575, In re Murray. Therein, Cassie Murray was designated as having been one and a half years old on October 17, 1986, when temporary commitment was first made to SCDHS following the filing of its complaint. It took nineteen months for a court determination to be made that "temporary custody" would remain with SCDHS. The result is that, by now, Cassie has spent more than two-thirds of her young life in the "temporary custody" of SCDHS. Moreover, there was no requirement at that time that SCDHS ever seek permanent custody and, theoretically, such "temporary custody" could have continued indefinitely.

Admittedly, such a result is no longer possible due to the sweeping reforms made to the juvenile court system effective January 1, 1989. See Am.Sub.S.B. No. 89 (142 Ohio Laws, Part I, 198 et seq.). Among other things, R.C. 2151.353 was amended to include a new subdivision (F), which provides as follows:

"Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under...

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