In Re: The S Children

Citations

• 2018 Ohio 2961

Syllabus

CHILDREN – CUSTODY – APPELLATE REVIEW – JURISDICTION – EVIDENCE – PROCEDURE/RULES – JUV.R. 45(B) – CIV.R. 41(B)(2): The juvenile court's judgment dismissing the Hamilton County Department of Job and Family Services' complaint for permanent custody was made in a special proceeding and affected a substantial right of the children and the children's guardian ad litem under R.C. 2505.02(B)(2). Immediate review of the juvenile court's order is necessary to ensure that, if the trial court did err in returning the children to their parents, the children are protected from physical harm and abuse, because the infliction of harm on the children would obviously be irreparable. Although the children's siblings remain subjects of the state's complaint and there was no Civ.R. 54(B) certification, the appellate court has jurisdiction under App.R. 4(B)(5) to hear the appeal: App.R. 4(B)(5) specifically contemplates an immediate appeal where there has been an order that affects a substantial right made in a special proceeding, but there has been no Civ.R. 54(B) certification. The trial court properly converted the parents' summary-judgment motion to a motion to dismiss the custody complaint under Civ.R. 41(B)(2): the Ohio Rules of Juvenile Procedure do not provide for a motion for summary judgment, and Juv.R. 45(B) allowed the trial court the discretion to recast the motion. The trial court's judgment determining that the children were not neglected under R.C. 2151.03(A)(2) was not against the manifest weight of the evidence: the trial court did not err in affording little weight to the children's medical records without expert testimony explaining the significance of the records to the state's allegation that the children lacked adequate parental care. The trial court erroneously concluded that R.C. 2151.04(C) required evidence of direct harm, and that the mere presence of the children in a home where a sibling had been abused was insufficient as a matter of law to prove dependenc