Probate Court Can Consider Adoption Over Objections of Children Services Agency With Custody
A probate court may consider a couple’s request to adopt a minor with the mother’s consent after a juvenile court has granted temporary custody to a county children services agency that placed the child with an out-of-state relative, the Ohio Supreme Court ruled today.
In a 4-2 decision, with one justice not participating, the Supreme Court determined that an order of temporary custody does not override a parent’s right to consent to an adoption of the child. In an opinion authored by Justice Terrence O’Donnell, the Court majority decided that a parent loses the legal right to consent to an adoption after the termination of parental rights.
The case resolves competing claims of exclusive jurisdiction by the Allen County Juvenile Court and the Mercer County Probate Court in the case of a toddler identified as “M.S.” in court documents. The Allen County Children Services Board placed M.S. with the child’s aunt who lives in Indiana, while the probate court placed the child for adoption with a couple who served as foster parents to M.S. after the children services board removed the child from her mother’s care.
In separate dissenting opinions, Chief Justice Maureen O’Connor and Justice William M. O’Neill questioned the probate court’s right to assert its jurisdiction because the Allen County Juvenile Court was already involved. They cite the 2000 In re Adoption of Asente decision where the Ohio Supreme Court held that “once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other courts are to refrain from exercising jurisdiction over that matter.”
Child Tests Positive for Cocaine at Birth
In July 2014, M.S., a newborn child, tested positive for cocaine, and two weeks later the Allen County Children Services Board removed M.S. from her mother and placed her in the foster care of Brian and Kelly Anderson.
The next day, the Allen County Juvenile Court found probable cause to believe M.S. was subject to immediate harm from abuse or neglect and placed her in the children services board’s care. The board filed a dependency complaint, and the juvenile court declared M.S. dependent and abused and granted the board temporary custody.
In November 2015, the Andersons sought to participate in the juvenile court case and requested legal custody of M.S. The child’s mother filed a document agreeing to the Andersons’ participation and objected to the board’s plan to place M.S. with her sister in Indiana, who already had custody of M.S.’s half-sibling. Nonetheless, in January 2016, the board sought an order to place M.S. in the legal custody of the Indiana aunt, and M.S.’s mother asked the court to instead designate the Andersons as the legal custodians.
Mother Favors Adoption
In March 2016, the board removed M.S. from the Andersons and placed her with her aunt. About two weeks later, the mother filed a motion in neighboring Mercer County’s probate court asking the court to place M.S. with the Andersons “for the purpose of adoption.” The Andersons then asked the probate court to allow them to adopt M.S., and the mother appeared in probate court to consent to the adoption.
The probate court approved the adoption that same day and ordered the board to release M.S. to the Andersons’ attorney. The board, in response, moved for the Allen County Juvenile Court to prevent the child’s removal. The juvenile court granted the request, asserting it had “exclusive, original and continuing jurisdiction over the child.” The juvenile court expressed its concerns that the Andersons, who were assisting the board as foster parents, were now acting as “independent free agents” by seeking to adopt the child when the board’s goal was to place the child in the legal custody of her aunt.
Meanwhile, the Andersons asked the Mercer County Probate Court to hold the board in contempt of court for not surrendering the child. The probate court ruled it had jurisdiction to proceed with the adoption. It scheduled a hearing on the motion to hold the board in contempt and set the adoption petition for a final hearing.
The board responded by seeking a writ of prohibition from the Ohio Supreme Court that would have the probate court cease all action in the adoption case until the juvenile court concluded all proceedings in M.S.’s custody case. The Supreme Court granted the writ on June 1, 2016, noting that an opinion would follow with more detail.
The probate court filed a motion for reconsideration. The Supreme Court granted reconsideration, rescinded the June 1 writ and denied the board’s request to stop the probate court from proceeding with the adoption.
Juvenile Court Jurisdiction
Justice O’Donnell wrote that R.C. 2151.33(A)(1) gives a juvenile court exclusive original jurisdiction concerning whether a child can be found to be delinquent, unruly, abused, neglected, or dependent. Once the juvenile court determines a child is abused, neglected or dependent, it must hold a dispositional hearing and issue an order either (1) committing the child to the temporary custody of a children-services agency, a private child-placing agency, a parent, relative, or probation officer, (2) awarding legal custody to either parent or to a person who seeks legal custody before the dispositional hearing, or (3) granting permanent custody to a public children-services agency or private child-placing agency.
Justice O’Donnell noted that once a juvenile court orders a child into temporary custody, the court’s exclusive jurisdiction terminates, but it retains “continuing jurisdiction” over the child until the child reaches 18 or 21 years old or until the child is adopted.
“The juvenile court’s exclusive jurisdiction over M.S. granted by R.C. 2151.23(A)(1) therefore ended after it adjudicated her an abused, neglected, or dependent child and issued a disposition of temporary custody, and it is now exercising continuing jurisdiction over the child,” Justice O’Donnell wrote.
While the juvenile court retains jurisdiction over the child’s care, state law gives probate courts exclusive jurisdiction over adoption proceedings. Justice O’Donnell explained that while generally only a children-services agency or child-placing agency can place a child for adoption, Ohio law – R.C. 5103.16(D)(1) – permits the parents of a child to arrange a private adoption through the probate court.
Justice O’Donnell wrote that a parent need not have physical custody of the child to allow a private adoption; rather the parent’s right to consent to an adoption depends on the dispositional order made by the juvenile court. He explained that when a child is in temporary custody, the children-services agency receives legal custody of the child and with it the right to determine where and with whom a child will live. However, temporary custody is subject to “any residual parental rights,” he noted, which by statute preserves the right of the parent to consent to an adoption. If a court grants permanent custody, then the parents lose all parental rights, privileges, and obligations, including all residual parental rights, Justice O’Donnell wrote.
Justice O’Donnell concluded that state law does not prevent a probate court from exercising its jurisdiction over the adoption of a child who is also the subject of a custody proceeding in juvenile court. And he noted that the Ohio General Assembly did not grant temporary legal custodians the right to consent to an adoption and did not intend a temporary dispositional order to be a barrier to adoption in these circumstances.
He also explained that granting the probate court the right to proceed with the adoption does not conflict with the Court’s Asente decision, which concerned an interstate custody dispute. In Asente, courts in Ohio and Kentucky were both asserting exclusive jurisdiction as the child’s “home state.” Unlike Asente, Justice O’Donnell concluded, this case involves statutes that grant the probate court jurisdiction to proceed on the adoption of abused and dependent children who are the subject of a temporary-custody order. While the juvenile court exercised exclusive jurisdiction over M.S. when it adjudicated her a dependent and abused child, that exclusive jurisdiction has ended, and its continuing jurisdiction does not divest the probate court of its exclusive, original jurisdiction over this adoption proceeding.
For these reasons, “M.S.’s mother’s residual parental right to consent to adoption and preadoption placement . . . supersedes the board’s right to decide M.S.’s residential placement as part of its temporary custody. “
Justices Paul E. Pfeifer, Judith Ann Lanzinger, and Judith L. French joined Justice O’Donnell’s opinion. Justice Sharon L. Kennedy did not participate in the opinion.
Dissenting Justices Maintain Juvenile Court Had Exclusive Jurisdiction During Temporary Custody
In her dissent, Chief Justice O’Connor wrote that in the majority’s rush to permit the Andersons’ adoption of M.S., it is casting aside “every practitioner’s understanding of Ohio’s previously well-functioning juvenile court system, which must both protect dependent, neglected, and abused children and respect the fundamental constitutional rights of their parents.”
The chief justice explained that the majority fails to understand the significant difference between the early and later stages of a child abuse or neglect action. The juvenile court’s temporary custody order should not be considered its final determination, but rather an intermediate step to protect the child. Allowing the parent to control the child’s adoption through the probate court when the juvenile court is still considering whether to terminate a parent’s right and grant permanent custody to another person or reunite the child and parent is improper, she asserted.
Chief Justice O’Connor also challenged whether the Andersons followed the rules to seek an adoption and charged that they misled the probate court in a few key ways, including suggesting that M.S. was placed with the Andersons “with an eye toward adoption.” The board placed M.S. with the Andersons to serve as foster parents, while the board sought to place M.S. with a family member, she noted.
The chief justice wrote that as long as a temporary order is in effect, the child’s parent has no legal authority to direct the child’s placement.
“Nevertheless, the judicial fiat rendered by the majority today expands the scope of residual parental rights, which evidently now permit a parent to control placement of the child and to divest a juvenile court of its exclusive jurisdiction to adjudicate a complaint that the parent abused or neglected her or his child,” she wrote.
She concluded that the majority’s decision promotes the “sort of turf war” that the Supreme Court in Asente tried to prevent.
Justice O’Neill joined Chief Justice O’Connor’s dissent, and wrote separately that he believed the majority failed to address several key facts that would demonstrate it was inappropriate for the probate court to consider the adoption.
“Nowhere in our entry issuing the writ did we question the jurisdiction, wisdom, or motives of the Mercer County Probate Court,” he wrote. “However, it is preposterous to even suggest that the birth mother, having first exposed her newborn to cocaine, would have the temerity on her own to wander across county lines and attempt to consent to her child being put up for adoption.”
Chief Justice O’Connor joined Justice O’Neill’s dissent.
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