In re Child.

236 N.E.3d 356

2024-Ohio-538

IN RE: the S. CHILDREN

APPEAL NOS. C-230579, C-230580

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry: February 14, 2024

Appeals from: Hamilton County Juvenile Court, TRIAL NO. F16-2167Z.

Tibbs Law Office, LLC, and Sarah E. Michel, for appellant Mother.

Engel and Martin, LLC, and Mary K. Martin, for appellant Father.

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr., Assistant Prosecuting Attorney, for appellee Hamilton County Department of Job and Family Services.

Raymond T. Faller, Hamilton County Public Defender, and Klarysa Benge, Assistant Public Defender, for appellee Guardian ad Litem for the minor children.

Kacy C. Eaves, Middletown, for appellees C.S.1, M.S., and N.S.

Kimberly V. Thomas, for appellee C.S.2.

Ostrowski Law Firm Co., LPA, and Andrea Ostrowski, Springboro, for appellee K.S.

OPINION.

Winkler, Judge.

{¶1} In these consolidated parental-termination appeals, appellants mother and father each appeal the juvenile court’s decision granting permanent custody of their minor children C.S.1, M.S., N.S., and C.S.2 to the Hamilton County Department of Job and Family Services ("HCJFS"). The parents argue in three assignments of error that the juvenile court lacked jurisdiction to issue either its adjudicatory or dispositional orders, that HCJFS failed to establish by clear and convincing evidence that A.S. was an abused child and that A.S., C.S.1, M.S., N.S., and C.S.2 (collectively, the "S. Children") were neglected and dependent children, and that the juvenile court erred in granting permanent custody of the children to HCJFS.

{¶2} For the following reasons, we overrule the assignments of error and affirm the judgment of the juvenile court.

Factual and Procedural Background

{¶3} This appeal concerns five minor children mother and father adopted from China: C.S.1, currently age 17, M.S., age 14, N.S., age 12, C.S.2, age eight, and A.S., deceased. These children have various medical and psychological needs. Mother and father also have three now-adult biological children, one of whom had complex medical needs since she was an infant.¹ On October 4, 2016, mother and one of the adopted children, A.S., then age eight, went to the emergency room at Cincinnati Children’s Hospital Medical Center out of concern for behavioral issues and new prescription medications. After about half a day in the hospital, A.S. was discharged from the hospital for the night and was to return the next day. The next morning, A.S. returned by ambulance where he later died of an acute subdural hematoma.

{¶4} The litigation began on October 6, 2016, the day after A.S.’s death. That day, HCJFS filed its initial complaint alleging that the S. Children were abused, neglected, and dependent. HCJFS sought temporary custody of A.S.’s siblings, including C.S.1, M.S., N.S. and C.S.2 as well as temporary custody of A.S.l and K.S., two of the parents’ now-adult biological children. This case has a long history comprised of almost eight years of extremely contentious litigation. We summarize it here because it is particularly relevant to the parties’ procedural challenges and our review of the juvenile court’s orders.

{¶5} On October 20, 2016, HCJFS amended its complaint to omit A.S.1 because she had reached the age of majority. On December 19, 2016, the parents filed a motion to dismiss the first amended complaint for failure to set the dispositional hearing within 90 days as required by former R.C. 2151.35(B)(1). But the day before the 90-day deadline would have expired, HCJFS dismissed the complaint and filed a second amended complaint, which contained essentially the same set of facts and sought the same relief. The juvenile court overruled the parents’ motion to dismiss, holding that HCJFS’s second amended complaint was a legal nullity, because it was essentially identical to the previous complaint. However, the juvenile court retained discretion to continue the case beyond the 90-day deadline in former R.C. 2151.35(B)(1).

{¶6} On February 22, 2017, HCJFS dismissed the second amended complaint without prejudice and filed a third. Although this complaint contained largely the same set of facts as the previous complaints, the third amended complaint had two differences: it sought permanent custody instead of temporary custody and alleged that the Hamilton County Coroner’s Office had ruled A.S.’s death a homicide. On March 13, 2017, HCJFS dismissed the third amended complaint without prejudice and then filed a fourth to again reset the statutory deadlines.

{¶7} Eventually, the matter proceeded to an adjudicatory hearing in 2017. The bulk of the evidence presented dealt with the circumstances surrounding A.S.’s death. At the close of HCJFS’s case-in-chief on the fourth amended complaint, the juvenile court dismissed the abuse, dependency, and neglect allegations as to C.S.1 and N.S. The guardian ad litem ("GAL"), HCJFS, C.S.1, and N.S. appealed, and this court affirmed the dismissal of the neglect and abuse allegations for C.S.1 and N.S. but reversed the dismissal of the dependency allegations and remanded the cause. See In re S Children, 1st Dist. Hamilton Nos. C-170624 and C-170653, 2018-Ohio-2961, 2018 WL 3602988 ("S Children I"); In re S Children, 2018-Ohio-5010, 126 N.E.3d 239, ¶ 37 (1st Dist.) ("S Children II"). In May of 2018, the S. Children were placed in the care of their maternal aunt and uncle in New York, where they have lived since.

{¶8} In April 2019, the juvenile court entered an order dismissing A.S. from the complaint because he was deceased. HCJFS, the GAL, and the S. Children appealed, and this court reversed the dismissal of A.S., holding that a deceased child can be adjudicated as abused and remanding the cause. In re S Children, 1st Dist. Hamilton Nos. C-190287, C-190299, C-190313, C-190320, C-190332 and C-190333, 2020-Ohio-3354, 2020 WL 3264458 ("S Children III"). Following this court’s second remand, on November 25, 2020, the juvenile court adjudicated the S. Children dependent but not abused or neglected.

{¶9} The matter proceeded to a dispositional hearing for the first time in August 2021. Most of the evidence presented dealt with the status of C.S.1, M.S., N.S., and C.S.2, who had been in the care of their maternal aunt and uncle in New York since May 2018. On December 20, 2021, the juvenile court issued an order denying permanent custody of the S. Children to HCJFS, and granting legal custody of C.S.1, M.S., N.S., and C.S.2 to their maternal aunt and uncle.²

{¶10} The parents appealed, and this court reversed the juvenile court’s adjudicatory and dispositional orders and remanded the cause. In re S Children, 1st Dist. Hamilton Nos. C-210672, C-210680, C-220005 and C-220006, 2022-Ohio-2941, 2022 WL 3641744, ¶ 23 ("S Children IV"). Because the juvenile court had not complied with the requirement under former R.C. 2151.35(B)(1) to hold a dispositional hearing within 90 days of the filing of the complaint, "the juvenile court had no authority to act on HCJFS’s third amended complaint or fourth amended complaint." Id. at ¶ 22. Accordingly, we remanded the cause with an order to dismiss the complaint without prejudice. Id. at ¶ 23. On September 27, 2022, the parents were indicted in Hamilton County for multiple felonies arising out of the death of A.S. and the parents’ conduct, including murder, assault, and child endangerment.³

{¶11} On remand, HCJFS filed its fifth amended complaint on August 24, 2023, seeking permanent custody of the S. Children. In response, the parents filed a motion to dismiss for lack of jurisdiction, arguing that after the last dismissal, the juvenile court no longer had jurisdiction to determine custody of their children because as of August 24, 2023, the S. Children lived in New York and had lived in New York for the prior five years. Thus, the parents argued, New York, not Ohio, had jurisdiction. The juvenile court determined that it had jurisdiction because Ohio is the most convenient forum for making a determination in this case.

{¶12} The parents sought a writ of prohibition from this court, which we denied. Snyder v. Capizzi, 1st Dist. Hamilton, 2024-Ohio-305, 234 N.E.3d 654. Though the juvenile court had erred in its jurisdictional analysis, it nevertheless had subject-matter jurisdiction under R.C. 3127.15 because the dismissal of the prior complaints led to the S. Children having no "home state" for jurisdictional purposes and the parents and the S. Children had a significant connection to Ohio sufficient to establish jurisdiction. Id. at ¶ 28.

{¶13} The juvenile court did not stay the proceedings while the writ of prohibition was pending. The matter proceeded to the third adjudicatory hearing on September 11, 2023. Like the first adjudicatory hearing, the focus was on the cause of A.S.’s death. The parties each put on multiple expert witnesses. HCJFS presented five doctors’ opinions that A.S. died by homicide from an acute subdural hematoma caused by abusive physical head trauma. Mother and father presented two doctors’ opinions that A.S. died from a combination of a widespread and acute bronchopneumonia, an infection not discovered at the hospital, and sepsis that caused bleeding in the brain.

{¶14} The juvenile court also took evidence about the parents’ care and disciplining of the S. Children. A.S., M.S., C.S.1, and N.S. were all on varying restrictive diets and the parents insisted C.S.1, M.S., and N.S. had undocumented food allergies. Since leaving their parents’ care, C.S.1, M.S., N.S., and C.S.2, as well as the now-adult K.S., demonstrated growth and healthy weight gain. Witnesses testified the parents would lock A.S. in a room alone with just one or two books as punishment, tape socks on A.S.’s hands and then tape those to his pants to restrain him, and tape A.S.’s diaper to him to prevent him from smearing its contents on the wall. M.S. would be disciplined for bedwetting by being...