Vickers Children, In re

• Decision Date: 30 December 1983
• Citation: 14 Ohio App.3d 201,470 N.E.2d 438
• Parties: , 14 O.B.R. 228 In re VICKERS CHILDREN.
• Court: Ohio Court of Appeals

Page 201

14 Ohio App.3d 201

470 N.E.2d 438, 14 O.B.R. 228

In re VICKERS CHILDREN.

Court of Appeals of Ohio, Twelfth District, Butler County.

Dec. 30, 1983.

Syllabus by the Court

1. Hearings for permanent custody under R.C. 2151.414 must conform to the Rules of Juvenile Procedure. Hence, pursuant to Juv.R. 29 and 34, the proceedings should be bifurcated into separate adjudicatory and dispositional stages.

2. In conducting the adjudicatory phase of the hearing under R.C. 2151.414, the best interests of the child should not enter into the determination of whether the child is receiving adequate parental care. The focus, at this stage, is on the parents and on what they are providing in terms of food, shelter and care, as well as what they are capable of providing in the future.

3. Hearsay is not admissible in adversarial juvenile court proceedings at which a parent, charged with neglecting his or her children, may lose custody of the children.

Michael J. Sage, Asst. Pros. Atty., for appellee.

Baden, Jones, Scheper & Crehan and Mark N. Hardig, Cincinnati, for appellant Marion Pate.

Gary L. Sheets, Fairfield, for appellant Diane Vickers Pate.

PER CURIAM.

This cause came on to be heard upon appeals from the Domestic Relations Division of the Court of Common Pleas of Butler County.

This case was initiated by the filing of a complaint in the Domestic Relations Division of the Butler County Court of Common Pleas alleging that Madio and Joseppi Vickers were neglected children as defined by R.C. 2151.03 and requesting that permanent custody be granted to the Butler County Department of Public Welfare (the "welfare department"). The next item in the record is an entry granting temporary custody of Madio and Joseppi to the welfare department.

A summons was issued to the then Miss Diane Vickers, now Mrs. Diane Vickers Pate (referred to as either "Miss Vickers" or "Mrs. Pate" herein), as the mother of the children. The father was alleged at that time by Miss Vickers to be one "Leroy Tucker."

After a hearing, the trial court found the Vickers children to be neglected, awarded temporary custody to the welfare department and ordered the welfare department to file a reunification plan. Such a plan, pursuant to R.C. 2151.412(C) was filed and incorporated by reference by the court on August 12, 1982. Marion Pate, though not a party to the original hearing, was given a role in the reunification plan adopted by the court for reasons more fully discussed below.

On March 31, 1983, the welfare department filed a motion for permanent custody of the Vickers children alleging that Mr. and Mrs. Pate (Miss Vickers and Marion Pate had married by that time) and the alleged "Mr. Tucker" had not fulfilled their obligations under the reunification plan. After a hearing on the matter, the court announced its intention to award permanent custody to the welfare department. Subsequent to a request to do so under R.C. 2151.414(B), the trial court filed a judgment entry in which it made findings of fact and conclusions of law.

This court's jurisdiction was invoked by the independent initiation of appeals by both Mrs. Pate and Mr. Pate (case Nos. CA83-06-071 and CA83-06-072, respectively). In an August 10, 1983, entry, this court consolidated both cases for the purposes of appeal.

I Case No. CA83-06-071

Mrs. Pate's attorney filed an "Anders" brief (see Anders v. California [1967], 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), alleging that "while errors did occur, the judgment on the whole is supported by the facts adduced, and any errors that did occur were harmless * * * so far as appellant Diane Vickers is concerned." Counsel then submitted "all arguable errors he * * * located within the record" so that this court might review them to determine whether they contain arguable merit. Counsel apparently believes that, after examining the record and pertinent case law, while some "arguably improper" considerations and procedural errors surfaced, the trial court was correct in its conclusion that Mrs. Pate should be divested of her "residual parental rights, privileges, and responsibilities." ¹

Mrs. Pate first notes that the initial removal of the children from her home was accomplished without a hearing to determine the immediate necessity of removal, either before the actual removal occurred, or within a reasonable time thereafter.

Mrs. Pate argues that a "person's children probably enjoy less due process protection from ex parte government action than that same person's furniture." However, where constitutional arguments are not raised, argued and ruled upon by the trial court, reviewing courts should not entertain such arguments for the first time on appeal. State, ex rel. Specht, v. Oregon City Bd. of Edn. (1981), 66 Ohio St.2d 178, 182, 420 N.E.2d 1004 .

Mrs. Pate next notes that the court below failed to bifurcate the hearing proceedings into separate adjudicatory and dispositional stages and permitted testimony as to the best interests of the children to enter into what was ostensibly the adjudicatory portion of the hearing.

The statutory scheme adopted in 1980 for permanent custody cases provides that a county department, the welfare department herein, may file a motion requesting permanent custody where the department has obtained temporary custody and a period of at least six months has elapsed since the order of temporary custody was issued. R.C. 2151.413. R.C. 2151.414(A) provides that upon the filing of such a motion a summons shall be served, pursuant to R.C. 2151.29, with a notice explaining the potential result of the proceeding, and that the court shall conduct:

"(A) * * * a hearing to determine all of the following:

"(1) If the county department * * * has made a good faith effort to implement the initial and comprehensive reunification plans for the child that were approved by the court pursuant to section 2151.412 of the Revised Code;

"(2) If the parents have acted in such a manner that the child is a child without adequate parental care, and will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care. In making this determination, the court shall consider all relevant factors, including but not limited to, the following considerations:

"(a) The extent to which the parents of the child have conformed to the initial and comprehensive plans for the child that were approved by the court pursuant to section 2151.412 of the Revised Code and the extent to which the parents have fulfilled their obligations under the plans;

"(b) Any existing emotional or mental disorders of the parents and the anticipated duration of the disorders;

"(c) Any physical, emotional, or sexual abuse of the child by the parents that occurs between the date that the original complaint alleging abuse was filed and the date of the filing of the motion for permanent custody;

"(d) Any existing excessive use of intoxicating liquor or drugs of abuse by the parents;

"(e) Any physical, emotional, or mental neglect of the child by the parents that occurs between the date that the original complaint alleging neglect was filed and the date of the filing of the motion for permanent custody.

"(3) If it is in the best interest of the child to permanently terminate parental rights."

R.C. 2151.414(B) then provides, relative to the facts herein, that the movant is to be awarded permanent custody of the child if it is proved, by clear and convincing evidence:

" * * * that the child is not abandoned or orphaned and the parents have acted in such a manner that the child is a child without adequate parental care, and will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care, * * *."

Contrary to Juv.R. 29 and 34, R.C. 2151.414 appears to provide for a single hearing in cases involving a motion for permanent custody filed by a "county department, board, or certified organization." See R.C. 2151.413(A) and R.C. 2151.414(A). Yet, Juv.R. 1(A) provides that:

"These rules prescribe the procedure to be followed in all juvenile courts of this state in all proceedings coming within the jurisdiction of such courts, * * *." (Emphasis added.)

It is clear that the Juvenile Rules, which were prepared and submitted by the Ohio Supreme Court to the legislature pursuant to Section 5(B), Article IV of the Ohio Constitution, ² must control over subsequently enacted inconsistent statutes purporting to govern procedural matters. Any other interpretation would gut Section 5(B), Article IV, of its essential purpose, that of constitutionally granting rule-making power to the Supreme Court. See, also, Jacobs v. Shelly & Sands, Inc. (1976), 51 Ohio App.2d 44, 365 N.E.2d 1259 (same result where Civil Rules and Rules of the Court of Claims were interpreted).

Accordingly, hearings for permanent custody under R.C. 2151.414 must conform to the Juvenile Rules. Substantively, the issues at such a hearing, where the child is not abandoned or orphaned, are clearly defined by the statute to be:

(1) Whether the parents have acted in such a manner that the child is a child without adequate parental care, and

(2) Whether the parents will continue to act in the near future in such a manner that the child will continue to be a child without adequate parental care. See R.C. 2151.414(B).

A child is a child without "adequate parental care" if he is without:

" * * * the provision of adequate food, clothing, and shelter to ensure a child's health and physical safety and the provision of specialized services warranted by a child's physical or mental needs." R.C. 2151.011(B)(17).

Other relevant factors in determining this issue can be found in R.C. 2151.414(A)(2)(a) thru (e), quoted above.

The best interests of the child should not enter into the adjudication of whether the child is receiving adequate parental care. The focus is on the...