holding that a parent's failure to challenge the constitutionality of R.C. 2151.414(B)(1)(d) at the trial court level resulted in waiver of subsequent challenges on appeal.
How later courts described this case
- holding that a parent's failure to challenge the constitutionality of R.C. 2151.414(B)(1)(d) at the trial court level resulted in waiver of subsequent challenges on appeal.
Written by the judges who cited it.
The opinion
William M. O’Neill, Judge,
dissenting.
{¶ 69} I must respectfully dissent.
{¶ 70} In his sixth assignment of error, Hannold challenges the constitutionality of R.C. 2151.414(B)(1)(d). Cases terminating parental rights present an extremely difficult balancing of parents’ fundamental liberty interest to raise their child and the state’s important interest in ensuring the safety and well-being of its children. Although Hannold did not challenge the constitutionality of this statute at the trial court level, I believe this is an appropriate instance to exercise the discretion to consider this important constitutional challenge to a statute.
1
Further, I agree with appellant that R.C. 2151.414(B)(1)(d), facially and as applied, is unconstitutional.
{¶ 71} The Supreme Court of Ohio has recognized the importance of parents’ rights to raise their children. “ ‘Permanent termination of parental rights has been described as “the family law equivalent of the death penalty in a criminal case.” * * * Therefore, parents “must be afforded every procedural and substantive protection the law allows.” ’ ”
2
{¶ 72} Moreover, both the Supreme Court of Ohio and the United States Supreme Court have recognized parental rights as fundamental liberty interests. This is apparent in the following language:
{¶ 73} “ ‘The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the
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State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.’ ”
3
{¶ 74} Finally, the United States Supreme Court has “recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
4
{¶ 75} Because a fundamental constitutional right is at issue, the constitutionality of R.C. 2151.414(B)(1)(d) must be reviewed using a strict-scrutiny analysis.
5
Thus, the statute must be narrowly tailored to serve a compelling state interest.
6
{¶ 76} The state’s interest in protecting its children from abuse and neglect is compelling. However, R.C. 2151.414(B)(1)(d) is not narrowly tailored to achieve that interest. This is because it does not require the children services agency to prove, or the trial court to find, that the natural parents are unfit or unsuitable to raise their children.
{¶ 77} The Supreme Court of Ohio has acknowledged that a finding of parental unsuitability is necessary in a custody dispute between a natural parent and a nonparent.
7
While the
Hockstok
case involved a dispute between a parent and a grandparent and was decided pursuant to R.C. 3109.04, there is no reason why this requirement should not apply to custody disputes adjudicated under R.C. 2151.414. Specifically, the Supreme Court of Ohio held that “ ‘the general rule in Ohio regarding original custody awards in disputes between a parent and a non-parent is that “parents who are ‘suitable’ persons have a ‘paramount’ right to the custody of their minor children unless they forfeit that right by contract, abandonment, or by becoming totally unable to care for and support those children.” ’ ”
8
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{¶ 78} Pursuant to R.C. 2151.414(B)(1)(d), once a trial court finds that a child has been in the temporary custody of a children service agency for 12 months of a 22 month period, it may proceed to the best interest determination set forth in R.C. 2151.414(D). The time limit of 2151.414(B)(1)(d) is entirely arbitrary, as it does not require the court to consider (1) why the child was initially placed in temporary custody, (2) why the child has remained in temporary custody for more than a year, including any delays caused by the agency or other persons involved in the case, (3) improvements the parent has made to achieve reunification, or, ultimately, (4) the parents’ ability to raise their child. Rather, all the evidence the children services agency needs to present to meet this criterion is the date of temporary placement and a calendar.
{¶ 79} Cases involving the termination of parental rights are often very complex. There are many competing interests involved. The child, caseworkers, natural parent(s), foster parent(s), psychologists, doctors, attorneys, and others involved must complete a variety of tasks before there is a final permanent custody hearing. However, as all the various tasks and reports are being completed, the “statute of limitations” is running against the natural parents. Should 12 months pass, the children services agency is halfway home on the battle for permanent custody. R.C. 2151.414(B)(1)(d) has already been met. The only hurdle left is to show that the grant of permanent custody is in the child’s best interest.
9
{¶ 80} In addition, the children services agency files the motion for permanent custody. The natural parents have no control over the timeliness of the filing of the motion. The current statutory framework entices the agency to wait to file the motion for permanent custody until the child has been in their custody for twelve months. Why would an agency file a motion for permanent custody early, when it could wait to file until after 12 months have passed, and go right to the best interest phase?
{¶ 81} Simply stated, R.C. 2151.414(B)(1)(d) does not protect natural parents’ fundamental rights concerning the care, custody and control of their children.
{¶ 82} Moreover, the best interest analysis of R.C. 2151.414(D) does not force the trial court to find that a parent is unfit or unsuitable to raise their child.
{¶ 83} Not only is the arbitrary time requirement being used against a parent once pursuant to R.C. 2151.414(B)(1)(d), the same time requirement is a specific factor to be used when considering the best interest of the child.
10
Accordingly, if the child has been in the temporary custody of a children services agency more
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than 12 months, there are two strikes against the parent,
regardless of the underlying circumstances that caused the placement.
{¶ 84} In addition to the time requirement, other factors of the best interest analysis consider the child’s relationship with its foster parents and current placement situation.
11
This is entirely unfair to the natural parents. Foster parents, presumably, will always be “fit,” as they must have met certain screening criteria to become foster parents. Moreover, if the child has been in the custody of the agency for more than a year, it is likely the child has been in the home of the foster parents for that time. In most every case, the child, especially a young child, is going to have a stronger bond to the foster parents, who interact with them on a daily basis, than to the natural parents, whom they see only for minimal times during structured visitation.
{¶ 85} Pursuant to the current version of R.C. 2151.414, after finding that the child has been in the temporary custody of a children service agency for 12 out of the past 22 months, the trial court proceeds to the best interest factors of R.C. 2151.414(D). Accordingly, the court is not required to find any level of unfitness or inability on behalf of the natural parent. Presumably, all the court would need to find is that the child would be better off if permanent custody was granted to the children service agency, so the child could be adopted by the “better” foster parents.
{¶ 86} Moreover, the “best-interest” analysis of R.C. 2151.414(D), suggests a presumption in favor of granting a motion for permanent custody. Specifically, R.C. 2151.414(D)(4) asks the court to consider whether the child’s need for legally secure placement “can be achieved
without
a grant of permanent custody to the agency.” (Emphasis added.) How does this language ensure natural parents their “paramount” right to the custody of their children?
{¶ 87} Appellee argues that R.C. 2151.414 does provide adequate procedural safeguards for parents. Appellee cites
In re Thompson,
where the Tenth Appellate District held that the legislature has ensured constitutional safeguards by providing for “adequate notice, assistance of counsel, and (under most circumstances) the right to be present” at these proceedings.
12
However, these important safeguards do not address my paramount concern, which is R.C. 2151.414(B)(1)(d) does not require a finding of wrongdoing, unfitness, or unsuitability. Remembering that these cases are the family law equivalent of the death penalty, adopting appellee’s position would be analogous to a criminal defendant being provided with the right to counsel, the right to confront witnesses, etc, but,
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instead of requiring he be found guilty of the crime, only requiring the state to show it is in the public’s best interest to send this individual to prison.
{¶ 88} The majority cites the Fourth District’s holding in
In re Workman,
for the inference that R.C. 2151.414(B)(1)(d) carries a presumption of unfitness.
13
Essentially, this “presumption” is “if the parent were fit, the child would not be in the state’s custody.”
{¶ 89} I disagree with the above analysis, as it raises several constitutional concerns. The initial problem with the “presumption” reasoning, is that it is factually incorrect. Children can be placed in the temporary custody of a children services agency for a variety of reasons. Such placement is not, per se, indicative of improper acts on behalf of the parent. For instance, in the case sub judice, the uncontested evidence presented by appellee was that Hannold was not responsible for the child’s temporary placement with appellee. The evidence clearly established that the reason for the child’s placement was the neglect of the child’s mother. Hannold did not live with the child’s mother and had no means of controlling her actions. How can there be a presumption that he is unfit to care for his daughter?
{¶ 90} The second concern is that the children services agency is determining that the parent continues to be “unfit” while the child is in its custody. Permitting a determination of unfitness to be made by a caseworker, rather than a court of law, is fundamentally unfair. Allowing an order of temporary custody (even if a parent was not involved in the temporary custody hearing) and subsequent continuing placement with children services, to be a presumption of “unfitness” is a violation of a parent’s constitutional rights, as they are being deemed an “unfit” parent, without the constitutional safeguards designed to protect them from untrue allegations.
{¶ 91} By the time paternity was legally established and Hannold was involved in the case, nearly a year had passed since the child had been removed from her mother the second time. While there were several factors that contributed to this delay, the children services agency benefited, as the time limitations were running for the duration of this process. At the time of the permanent custody hearing, the child had been in the temporary custody of appellee in excess of twelve months. The only question before the court was “was it in the best interest of the child to grant appellee’s motion for permanent custody.” The court was permitted to consider the child’s relationship with her foster parents as a factor for terminating Hannold’s parental rights. The trial court was not required to find that Hannold was unfit or unsuited to raise his child. Hannold
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was entitled to a higher burden of proof before his fundamental constitutional right was terminated.
{¶ 92} R.C. 2151.414(B)(1)(d) permits a court to terminate parents’ rights to raise their children without finding that the child should not, or could not, be placed in the parents’ home. Rather, the court is merely required to consider whether it is in the “best interest” of the child for permanent custody to be given to the children service agency. Thus, an individual’s fundamental right to raise their child may be extinguished by the court finding that the child will be better off with her foster parents. This proposition is in direct conflict with the constitutional safeguards that have been continuously reiterated by the Supreme Court of Ohio and the United States Supreme Court.
14
{¶ 93} I recognize the legislature’s intent to shift emphasis to the well being of the child. However, R.C. 2151.414(B)(1)(d) is not narrowly tailored to accomplish the state’s interest, because it allows for parents’ fundamental rights to raise their children to be terminated without any finding of wrongdoing or unsuitability-
1
. See
State
v.
Schlee
(Dec. 17, 1999), 11th Dist. No. 98-L-187, 1999 WL 1313651 , citing
In re M.D.
(1988) 38 Ohio St.3d 149 , 527 N.E.2d 286 , syllabus.
2
.
In re Hoffman,
97 Ohio St.3d 92 , 2002-Ohio-5368 , 776 N.E.2d 485 , at ¶ 14, quoting
In re Hayes
(1997), 79 Ohio St.3d 46, 48 , 679 N.E.2d 680 , quoting
In re Smith
(1991), 77 Ohio App.3d 1 , 601 N.E.2d 45 .
3
. Id. at ¶ 16, quoting
Santosky v. Kramer
(1982), 455 U.S. 745, 753-754 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 .
4
.
Troxel v. Granville
(2000), 530 U.S. 57, 66 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 .
5
.
State v. Thompson,
95 Ohio St.3d 264 , 2002-Ohio-2124 , 767 N.E.2d 251 , at ¶ 13; see, also,
Troxel v. Granville,
530 U.S. at 80 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (Thomas, J., concurring).
6
. Id.
7
. .
In re Hockstok,
98 Ohio St.3d 238 , 2002-Ohio-7208 , 781 N.E.2d 971 , syllabus.
8
. Id. at ¶ 21, quoting
Masitto v. Masitto
(1986), 22 Ohio St.3d 63, 65 , 22 OBR 81, 488 N.E.2d 857 , quoting
In re Perales
(1977), 52 Ohio St.2d 89, 97 , 6 O.O.3d 293 , 369 N.E.2d 1047 .
9
. See R.C. 2151.414(B) and (D).
10
. R.C. 2151.414(D)(3).
11
. See R.C. 2151.414(D)(1), (3), and (4).
12
. See
In re Thompson
(Apr. 26, 2001), 10th Dist. No. 00AP-1358, 2001 WL 424044 .
13
.
In re Workman,
4th Dist. No. 02CA574, 2003-Ohio-2220 , 2003 WL 2012574 , at ¶39. (Citations omitted.)
14
. See, e.g.,
In re Hoffman
and
Santosky v. Kramer,
supra.