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Tuesday, July 22, 2008
In Re: T.R., T.H., A.H., D.H., Case no. 2008-0401
2nd District Court of Appeals (Montgomery County)
Cuyahoga County Bar Association v. Marcus Poole, Case no. 2008-0762
Disciplinary Counsel v. Phillip Paul Taylor, Case no. 2008-0820
Must Child Services Agency File Adoption Plan Before Court May Grant Permanent Custody Motion?
In Re: T.R., T.H., A.H., D.H., Case no. 2008-0401
2nd District Court of Appeals (Montgomery County)
ISSUE: Before a juvenile court may grant a motion awarding permanent custody of a minor child to a county children services agency, does Ohio law require that the agency must first have filed an adoption plan for that child with the court?
BACKGROUND: In December 2003, the Montgomery County Children Services Division (MCCS) obtained an order removing four young children from the home of their mother, identified as S.H., based on unsafe and unsanitary living conditions. In January 2006, after the mother failed to follow conditions of a case plan designed to allow the return of the children to her custody, MCCS filed a motion in the Montgomery County Juvenile Court seeking permanent custody of the children. Following a hearing, the court issued an order terminating the parental rights of S.H. and determining that it was in the best interest of the children that they be placed in the permanent custody of MCCS.
S.H. appealed. On review, the Second District Court of Appeals reversed the juvenile court and vacated its permanent custody order. In its decision, the court of appeals held that the section of state law governing motions for permanent custody, R.C. 2151.413, requires that when a children services agency files a motion for permanent custody of a child, it must also file a plan setting forth the agency’s assessment of the child’s likelihood of being adopted and its intended efforts to place the child in an adoptive home. Because no adoption plan had been filed with the juvenile court prior to its hearing on S.H.’s children, the court of appeals held that the juvenile court’s order was improperly issued and therefore invalid.
The Second District certified that its ruling on the issue of an adoption plan was in conflict with decisions of two other courts of appeals. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
Attorneys for MCCS urge the Court to reverse the Second District and affirm the decisions of other courts of appeals holding that the language of R.C. 2151.413 does not require that an adoption plan must be filed at the same time as a motion for permanent custody, or that such a plan must be filed before a permanent custody motion is decided. They argue that the statute merely requires that a child services agency must file such a plan with the court in any permanent custody case, but does not specify the timing of the required filing. They point to an earlier ruling by the Second District holding that the agency is not required to set forth an exact plan for adoption until after permanent custody is granted.
Attorneys for S.H. argue that R.C. 2151.413(E) establishes a clear requirement that any agency filing a motion for permanent custody of a child “shall include in the case plan of the child ... a specific plan of the agency’s actions to seek an adoptive family for the child ... ” They argue that the purpose behind requiring the filing of such a plan is to enable juvenile courts to consider the probable “adoptability” of the child or children in question as part of the court’s determination of whether continuing to attempt reunification with natural parents or awarding permanent custody to a children services agency is in the child’s best interest. Without having access to the agency’s plan regarding the “adoptability” of the children in this case, they contend, the juvenile court could not and did not make a fully informed decision about which course of action would be in their best interest.
Contacts
Carley Ingram, 937.225.5757, for the Montgomery County Children Services Division.
Byron Shaw, 937.286.5505, for S.H.
Attorney Discipline
Cuyahoga County Bar Association v. Marcus Poole, Case no. 2008-0762
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Marcus Poole be suspended for two years, with 18 months of that term stayed, for neglecting the cases of two clients, failing to refund unearned fee advances he received from those clients and failing to cooperate with disciplinary authorities investigating his misconduct. Poole has filed objections to the board’s findings and recommended sanction.
The board found that in one case Poole accepted a $200 retainer from the family of a prisoner to pursue his early judicial release, but did not take promised actions and subsequently failed to refund the fee advance despite the client’s request that he do so. Although Poole was notified by the Cuyahoga County Bar Association of a grievance filed against him by the client in August 2005, he did not file an answer or respond to repeated notifications from the bar association or state disciplinary board about the grievance until after default proceedings against him were initiated in February 2007.
In a second case, the board found that Poole took no action after accepting a $1,000 retainer from a client to pursue a predatory lending claim against a mortgage company, and failed to respond to the client’s inquiries about the progress of the case, with the result that the client fired Poole and demanded a refund of her fee advance. The board found that Poole promised but failed to make a partial refund of the retainer, and also failed to file an answer or respond to multiple contacts from disciplinary authorities after the client initiated a formal complaint against him.
Poole admits that he neglected the clients’ cases but argues that the penalty recommended by the board is excessive in light of the mitigating facts that he had practiced law for more than 25 years without disciplinary violations prior to these incidents, and was in the midst of personal and family medical crises at the time they occurred. Poole also asserts that he has recently made full restitution to both clients, that his neglect did not cause any harm to either of them, and that the board-recommended sanction is disproportionate to the penalties imposed in similar cases.
Contacts
Stanley E. Stein, 216.696.3525, for the Cuyahoga County Bar Association (now Cleveland Metro Bar Association).
E. Yvonne Harris, 216.696.2211, for Marcus Poole.
Attorney Discipline
Disciplinary Counsel v. Phillip Paul Taylor, Case no. 2008-0820
The Board of Commissioners on Grievances & Discipline has recommended that the Court suspend the license of Lorain attorney Phillip Taylor for six months, with the full term of suspension stayed, for violations of state attorney discipline rules in amending the wills and property ownership documents of a married couple, Juan and Picolla Rios, who were his long time clients.
Taylor does not dispute the disciplinary board’s findings or its recommended sanction. However, the Office of Disciplinary Counsel, which prosecuted the charges against him, has filed objections to the board’s dismissal of one charged count of misconduct and urges the Court to impose a one-year actual suspension from practice as the appropriate sanction for Taylor’s violations.
Taylor has admitted that he engaged in conduct involving deceit and misrepresentation and improperly continued his joint representation of both spouses despite their conflicting interests when he obtained the signature of Picolla, who suffered from dementia and terminal cancer and did not read or write English, on various documents including a power of attorney, an amended will and a quitclaim deed in which she unknowingly gave up her ownership interest in the family home in favor of her stepdaughter.
The board found that while Taylor’s actions violated disciplinary rules and breached his fiduciary duty to Picolla as an individual client, he did not act from a selfish motive and was attempting to achieve what he understood to be the couple’s wishes with regard to the disposition of their property. In light of his 40-plus year legal career without prior violations and other mitigating factors in the case, the board recommended a stayed suspension for violations that it noted would normally call for a more serious penalty.
Disciplinary Counsel argues that, regardless of his motives, Taylor’s conscious deception of a client to obtain her signature on documents that deprived her of significant property interests, and his subsequent filing of a court document knowingly listing a false “tax address” for the Rios’ stepdaughter were acts of serious misconduct that the Court has repeatedly held in other cases demand an actual suspension from practice.
Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Richard S. Koblentz, 216.621.3012, for Phillip Paul Taylor.
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