Opinion
No. 85-904
Decided May 14, 1986.
Juvenile law — Child committed to temporary emergency custody of children services board pursuant to Juv. R. 7 shelter care hearing — Reunification plan need not be ordered, when — R.C. 2151.412, construed.
CERTIFIED by the Court of Appeals for Hancock County.
On December 9, 1983, four-month-old Joshua Moloney was removed from the home of his parents, Michael and Cheri Moloney, appellants herein, by order of the Court of Common Pleas of Hancock County, Juvenile Division. A complaint had been filed alleging Joshua was neglected, dependent, and abused. On December 12, a shelter care hearing was held pursuant to Juv. R. 7(F). The court, apparently with the agreement of the Moloneys, found that probable cause existed for filing a complaint, and ordered that emergency protective custody of little Joshua be awarded to the Hancock County Children Services Board, appellee herein.
After an adjudicatory hearing on March 15, 1984, the court found by clear and convincing evidence that the baby was neglected, dependent, and abused. After all parties stated to the court that they wished to proceed immediately to the dispositional hearing, the court heard further evidence. The judge deferred ruling until March 28, at which time he found, inter alia:
"* * * The parents of Joshua Moloney have acted in such a manner that Joshua is without adequate parental care and it is likely that the parents would continue to act in such a manner that the child would continue to be a child without parental care even if a Reunification Plan were prepared.
"* * *
"* * * It is in the best interest of Joshua Moloney that his permanent custody be granted to the Hancock County Children Services Board."
The Moloneys thereafter requested the court to issue findings of fact and conclusions of law. Among the findings were these:
"1. Joshua Moloney is the son of Michael and Cheri Moloney and was born on August 19, 1983.
"2. Since birth Joshua has resided with his parents and all three have been under the supervision of caseworkers from the Hancock County Children Services Board.
"3. Although specifically instructed by their child's pediatrician to feed Joshua formula for infants, his parents have ignored those orders and fed him ordinary cow's milk.
"4. Cheri Moloney had been a recipient of the WIC program, which had provided her with the means of obtaining proper nutritional foods for Joshua.
"5. Joshua's parents were often without means for obtaining food and other necessaries for him, but despite this, Cheri Moloney allowed herself to be terminated from the WIC program * * * [because of] her own failure and refusal to keep appointments at the agency.
"6. Joshua and his parents resided in a trailer in Findlay, Ohio, which at that [ sic] time of the filing of the complaint was filthy, unsanitary and dangerous. The parents had no plans to reside elsewhere, nor did they correct these conditions.
"7. In the month of November, 1983, Joshua's father slapped him about the face, cursed him and threw him forcefully down on a couch because the child's crying agitated him. This occurred in the presence of Joshua's mother who did nothing to stop it and apparently is willing to cover up the fact that it happened.
"8. Joshua's mother had told caseworkers on two separate occasions that Michael had often slapped her and that Michael would slap Joshua because he made him nervous. Joshua's mother did nothing, however, to protect him.
"* * *
"9. By clear and convincing evidence, the Court finds that Joshua Moloney was a neglected, dependent and abused child as defined in Sections 2151.03(C), 2151.031(B) and 2151.04(C) of the Ohio Revised Code.
"Following the adjudicatory hearing, a dispositional hearing was conducted, and pursuant thereto, the Court makes the following findings of fact and conclusions of law, based on all the testimony heard in this matter, including the adjudicatory hearing.
"* * *
"1. Caseworkers from the Hancock County Children Services Board have had continued contact with Michael and Cheri Moloney since 1981 [ sic].
"2. The purpose of these contacts were to improve the parenting skills * * * of both Michael and Cheri * * *.
"3. Caseworker Dorothy Laube attempted to counsel, advise and teach the Moloneys in virtually every aspect of parenting, but no significant or lasting progress was made.
"4. The Moloneys were uncooperative and could not maintain any consistent degree of adequate parental care. Even though it was apparent that they knew how to provide adequate parental care, they lacked the ability to implement what they knew for any sustained period.
"5. The Moloneys, in January 1984, obtained a suitable residence, but this apartment is already showing signs of deterioration, especially when unannounced visits are made.
"6. The Moloneys have allowed one Darold Haudenschield to move in with them despite the fact that he is unemployed and is causing their welfare benefits to decrease.
"7. Mr. Haudenschield was convicted of acting in a way tending to cause the unruliness of a minor and other offenses and it appears that he will continue to reside with them indefinitely.
"8. The social history of the Moloneys show [ sic] a pattern of irresponsible conduct which dates back even before Joshua was born.
"9. The Moloneys are immature and unwilling to change their life styles.
"* * *
"10. Joshua's parents, Michael and Cheri Moloney, have acted in a manner that Joshua is a child without adequate parental care and it is likely that his parents will continue to act in such a manner that Joshua will continue to be a child without adequate parental care even if a reunification plan were prepared. (See O.R.C. 2151.353[A][4]).
"11. The best interests of Joshua Moloney would be served by permanently committing him to the custody of the Hancock County Children Services Board for purposes of adoption."
The Court of Appeals for Hancock County affirmed. Upon motion of the appellants, the court certified the record of the case to this court because its judgment conflicted with that reached by the Court of Appeals for Lawrence County in the similar case of In re Lewis (Sept. 2, 1982), Lawrence App. No. 1573, unreported. The cause is now before this court for final resolution.
Ralph D. Russo, for appellee.
Byron Craig Manford, for appellants.
The issue upon which the courts of appeals disagree and which is presented for our decision is this: Where an alleged neglected, dependent or abused child is committed to the temporary emergency custody of a children services board pursuant to a Juv. R. 7 shelter care hearing, must a court order a reunification plan, even though it has not yet reached a final adjudication and disposition under R.C. 2151.353? For the reasons which follow, we find in the negative.
The statute governing the requirements concerning the need for initial and comprehensive reunification plans is R.C. 2151.412. It states, in relevant portion:
"(A) When a child is adjudicated an abused, neglected, or dependent child and the court, pursuant to division (A)(2) or (3) of section 2151.353 of the Revised Code, orders commitment of the child to the temporary custody of * * * a county children services board, * * * the * * * board * * * shall submit an initial plan to the court * * *." (Emphasis added.)
Juv. R. 6 provides: "A child may be taken into custody: * * * by a law enforcement officer or duly authorized officer of the court when there are reasonable grounds to believe that the child is suffering from illness or injury and is not receiving proper care, or is in immediate danger from his surroundings, and that his removal is necessary, * * * and * * * where, during the pendency of court proceedings, it appears to the court that the conduct, condition or surroundings of the child are endangering the health, welfare, person or property of himself * * *."
Juv. R. 7(F)(1) requires that "[w]hen a child has been admitted to * * * shelter care, a detention hearing shall be held promptly, not later than seventy-two hours after the child is placed in * * * shelter care or the next court day, whichever is earlier, to determine whether detention or shelter care is required. * * *" Juv. R. 29(A) directs that the "date for the adjudicatory hearing shall be set when the complaint is filed, or as soon thereafter as is practicable. If the child who is the subject of the complaint is in detention or shelter care, the hearing shall be held not later than ten days after the filing of the complaint * * *." And, with respect to final disposition, Juv. R. 34(A) states that the "dispositional hearing may be held immediately following the adjudicatory hearing or at a later time fixed by the court."
The Court of Appeals for Lawrence County concluded in In re Lewis (Sept. 2, 1982), Lawrence App. No. 1573, unreported, that an initial reunification plan is necessary after emergency shelter care placement, notwithstanding the fact that a court has not yet reached the final adjudicatory and dispositional stages of the proceeding. The court explained:
"The mere existence of a temporary custody order implies a finding of neglect or dependency. The purpose of the statute — to encourage contact between parents and children — and the ultimate goal of the initial plan — to reunite parents and children — must not be circumvented by the absence of an express determination of neglect or dependency. Whenever temporary custody of a child is awarded to Children's Services, the child and the parents are entitled to preparation and institution of an initial plan * * *."
We do not agree with this reasoning. Juv. R. 2(1) defines an "adjudicatory hearing" as "a hearing to determine whether a child is * * * neglected, or dependent or otherwise within the jurisdiction of the court or whether temporary legal custody should be converted to permanent custody." The findings made in an adjudicatory hearing are thus intended to be quite particular and specific. A temporary shelter care hearing simply is not an adjudication — implied or otherwise — and it is nowhere defined as such. An order of temporary shelter care is made in recognition that a person of tender years is defenseless, unable to care for himself and that his natural needs for food, clothing and shelter demand that someone immediately assume the responsibilities that the parents have ignored. A shelter care decree is in no sense dispositive; it is interlocutory in nature, limited in scope and purpose, and temporary in duration. It responds to an emergency — the immediate physical needs of the child — until the court can fully inquire into the facts and decide what is best for the child. A shelter care order is no more than this.
In the recent case of In re Baby Girl Baxter (1985), 17 Ohio St.3d 229,
at 233-234, we explained the four dispositional choices a court has under R.C. 2151.353:
"After a child has been adjudicated dependent in an action and a disposition is to be made pursuant to R.C. 2151.353, the court has four options. The court may permit the child to remain with the parent subject to court conditions and limitations, including supervision. R.C. 2151.353(A)(1). The court may commit the child to the temporary custody of the welfare department, county children services board, either parent or a relative, or a probation officer. R.C. 2151.353(A)(2). The court may commit the child to the temporary custody of any institution authorized by the state to provide care or treatment to the child, R.C. 2151.353(A)(3), or the court may commit the child to the permanent custody of the welfare department, R.C. 2151.353(A)(4). R.C. 2151.412(A) requires that if the R.C. 2151.353(A)(2) or (3) options are utilized, the welfare department must submit an initial plan to reunite the family.
"* * * R.C. 2151.412 does not require that a court order a reunification plan when it makes disposition pursuant to R.C. 2151.353(A)(4)."
Baxter leads us to hold in the present case that the formulation of an initial reunification plan under R.C. 2151.412(A) is mandated only where a court makes a disposition of temporary custody under R.C. 2151.353(A)(2) or (3). The reunification plans necessitated by R.C. 2151.412 pertain only where a child has previously been determined to be dependent, neglected or abused; temporary custody has been committed to a children services board, welfare department or a certified organization; and an order is sought changing temporary to permanent custody. Initial and comprehensive reunification plans are not necessary pursuant to an emergency shelter care order.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.