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Tuesday, June 24, 2008

Southside Community Development Corporation v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, and Youngstown City School District Board of Education, Case no. 2007-1722
State Board of Tax Appeals (Mahoning County)

In the Matter of: T. M., Case no. 2007-2317
12th District Court of Appeals (Madison County)

In the Matter of: Kayla H. and Joshua H., Case no. 2007-2454
6th District Court of Appeals (Lucas County)

In the Matter of: Christian Drake Thomas, Adjudged Dependent Child, Case no. 2008-0073
3rd District Court of Appeals (Crawford County)


Does Buyer of Property While Tax Appeal Pending Have Standing to Intervene In Tax Appeal Case?

Southside Community Development Corporation v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, and Youngstown City School District Board of Education, Case no. 2007-1722
State Board of Tax Appeals (Mahoning County)

ISSUE:  Does a buyer who purchases a parcel of real property while a tax appeal filed by the previous owner is still pending, and whose purchase agreement assumes the previous owner’s tax liability if not excused by a tax exemption or remission, have standing to intervene in the tax appeal case initiated by the previous owner?

BACKGROUND: In December 2004, the Southside Community Development Corporation (SCDC) filed an application with the State Tax Commissioner seeking exemption from property tax for the 2004 tax year and remission of tax liability for 2001 through 2003 for eight parcels of  real property owned by SCDC in the Youngstown City School District.  The school district opposed the application.

In April 2006 the tax commissioner issued a final determination denying the requested tax exemption and remission of prior year tax liability. In May 2006 SCDC filed voluntary bankruptcy proceedings in the U.S. Bankruptcy Court in Youngstown and the property at issue in the tax case became part of a bankruptcy estate administered by a court-appointed trustee. In June 2006, within the 60-day limit following the tax commissioner’s denial of exemption, the trustee filed an appeal of that ruling  with the State Board of Tax Appeals (BTA). In July 2006, while the BTA appeal was pending, the bankruptcy court approved the sale of the eight parcels to Mahoning County.  Under the terms of that sale, the county assumed SCDC’s liability for all unpaid property taxes on the eight parcels that were not excused by an exemption or remission. 

After purchasing the property, Mahoning County filed a motion with the BTA seeking to intervene in the tax appeal case initiated by SCDC.  The tax commissioner filed a memorandum opposing the county’s motion to intervene.  In August 2006, without ruling on the merits of the tax appeal itself, the BTA denied the county’s motion to intervene on the basis that the county did not have legal standing to do so. The county sought and was granted Supreme Court review of the BTA ruling denying the motion to intervene.

Attorneys for Mahoning County argue that, as the current legal owner of the parcels at issue in the tax appeal case, and the sole party obliged to pay any delinquent taxes for the 2001 through 2004 tax years if the BTA affirms the tax commissioner’s decision, the county is a successor in interest that “stands in the shoes” of SCDC. They note that R.C. 5717.02 specifically authorizes “the taxpayer” affected by a ruling of the tax commissioner to pursue an appeal of that ruling, and assert that the county’s purchase of the property subject to the previous owner’s tax liability has placed it in the role of the “taxpayer” in the pending BTA case.

Attorneys for the tax commissioner urge the court to affirm the BTA’s ruling that the county does not have legal standing to intervene in the tax appeal case under R.C. 5717.02 or case law interpreting the tax appeal statute because: 1) the county was not the legal owner of the property for any of the tax years covered by the December 2004 application for exemption and remission that is under appeal, and 2) the county was not the legal owner of the subject property in June 2006, when the appeal of the commissioner’s ruling was filed with the BTA.

Contacts
Damion M. Clifford, 614.995.9032, for the State Tax Commissioner.

Carmen V. Codjoe, 330.744.1111, for Mahoning County.

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Does Requiring Admission of Abuse as Condition for Regaining Child Custody Violate Parents’ Rights?

In the Matter of: T. M., Case no. 2007-2317
12th District Court of Appeals (Madison County)

ISSUE: Does a provision in a children services agency case plan requiring that one or both parent(s) of an injured child must admit abusing the child as a mandatory condition of regaining custody violate the parents’ constitutional right against self-incrimination?

BACKGROUND:  In August 2004, the Madison County Department of Child and Family Services (MCCFS) obtained temporary custody of a four-month-old girl identified as T.M. after emergency room doctors treating the child for a swollen leg found five different fractures in her extremities that were at different stages of healing. An expert in childhood injuries who examined T.M. determined that the injuries were not accidental, but the result of abuse. Following treatment for her injuries, T.M. was placed in the home of a foster family under the supervision of MCCFS by order of the local juvenile court.

MCCFS established a case management plan with the stated goal of reunifying the family. Among the terms of that plan, the parents were required to attend parenting classes, undergo mental health and substance abuse assessments, and successfully complete a treatment program for the conduct that presumably resulted in the child’s injuries. In their sessions with case workers and counselors, neither of T.M.’s parents admitted physically abusive behavior and insisted that the child’s injuries must have resulted from one incident in which she was accidentally struck by a shopping cart or some other unknown cause. In July 2006, the social worker in charge of the case added to the case plan the requirement that, in order to successfully complete treatment and become eligible to recover custody of T.M., “the person or persons responsible for (T.M.’s injuries) will verbally admit their responsibility for the physical abuse.”

In March 2007, after hearing testimony by MCCFS that the parents had not completed the required treatment program by virtue of their continuing refusal to admit that one or both of them had physically abused T.M., the juvenile court issued a final order terminating their parental rights and granting permanent custody of T.M. to MCCFS. The parents appealed, asserting among other claims that the trial court had violated their Fifth Amendment right against self-incrimination. The 12th District Court of Appeals affirmed the juvenile court’s ruling. 

Attorneys for the parents now ask the Supreme Court to reverse the decisions of the juvenile court and court of appeals and order that their parental rights be reinstated. They contend that the parents substantially complied with all of the other parts of the case plan established by MCCFS, including attending parenting classes and undergoing mental health and substance abuse screenings, which found no need for additional steps. They assert that the agency’s refusal to recommend that custody of their daughter be restored, and the resulting juvenile court decision terminating their parental rights, were based primarily on their refusal to comply with the unconstitutional requirement that they verbally admit having engaged in criminal acts of child abuse. They point to state and federal court decisions holding that individuals may not be subjected to a substantial penalty for asserting their right against self-incrimination, and note that those holdings have applied not only to criminal cases but also to bar adverse consequences in civil proceedings. In this case, they argue, the termination of parental rights is among the most severe penalties that any court can impose, and the action of juvenile court based on their refusal to self-incriminate was clearly impermissible under the Fifth Amendment.

Attorneys for MCCFS argue that the case record supports the 12th District’s holding that there were substantial other reasons for refusing to return T.M. to the custody of her parents besides their refusal to admit committing child abuse. They point to testimony at dispositional hearings that the parents did not demonstrate satisfactory progress in a variety of parenting skills, continued to live in a household with other adults where T.M. could not be protected from potential future abuse, and failed to meet other objective criteria the agency applies in determining whether returning a child to a parent’s custody is in the best interest of the child.  They also argue that, even if the Court finds that requiring an admission of past abuse infringed on the parents’ right against self-incrimination, court decisions in several other states have held that when failure to admit past abuse prevents a parent from receiving effective treatment, termination of parental rights is not a penalty for refusing to self-incriminate but rather a necessary precaution to prevent the return of the child to a known and unremediated unsafe environment.

Contacts
Renae E. Zabloudil, 740.852.9747, for the parents of T.M.

Rachel M. Price, 740.852.2259, for Madison County Department of Child and Family Services.

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Is Diagnosis as a Pedophile and Refusal of Spouses to Live Apart Grounds to Terminate Parental Rights?

In the Matter of: Kayla H. and Joshua H., Case no. 2007-2454
6th District Court of Appeals (Lucas County)

ISSUE: Is the diagnosis of one parent as a pedophile and the refusal of his spouse to divorce or permanently separate from him sufficient grounds for a juvenile court to terminate the parental rights of both spouses to custody of  their natural children where there is no finding that the diagnosed parent has ever offended against his own child and where the only instance of criminal activity occurred many years in the past?

BACKGROUND: In February 2005, an infant identified as Joshua H. was treated for bleeding inside his skull that was found to be consistent with “shaken baby syndrome.” Police were unable to establish whether the injuries were caused by Joshua’s father or mother, Todd and Sarah H., by the child’s 10-year-old autistic stepbrother or by an uncle in whose care Joshua had been left. As a result of the shaken baby incident, the Lucas County Children Services Board (LCCS) obtained temporary custody of Joshua and his three-year-old sister, Kayla.

In establishing a case management plan with the stated objective of reunifying the family, LCCS determined that 14 years earlier, when he was 19, Todd had been convicted of sexually molesting two young boys who were not related to him while acting as their babysitter. After serving a prison sentence for those offenses, Todd completed a five-year term of probation during which he attended weekly group therapy sessions for sex offenders. As part of the LCCS case plan, both parents were required to attend parenting classes and complete alcohol and substance abuse screenings. Todd was also required to attend a sex offender treatment program, and Sarah was encouraged to consult with her husband’s counselors to identify high-risk situations and learn strategies to prevent future abuse if and when the children were returned to their home.

After the parents had completed the required screenings and counseling, LCCS informed them that, based on the conclusion of the social worker who evaluated Todd that he was a pedophile with a high probability of reoffending, the agency would not recommend that their children be returned to a home in which Todd continued to reside, but would recommend that they be returned to Sarah’s sole custody if she divorced or permanently separated from Todd and the two lived apart.  Sarah rejected that condition, and LCCS filed a motion requesting that the court terminate the custodial rights of both parents and award permanent custody of Kayla and Joshua to LCCS. In November 2006, following a hearing at which both sides presented expert testimony regarding Todd’s diagnosis as a pedophile, the juvenile court granted permanent custody to LCCS. On review, the 6th District Court of Appeals affirmed the decision of the juvenile court.

Todd and Sarah H. now ask the Supreme Court to reverse the lower courts and reinstate their parental rights. They argue that LCCS did not meet its burden of proving by clear and convincing  evidence the required statutory condition that Todd’s pedophilia constituted a “chronic emotional illness so severe” that he and Sarah could not provide an adequate home for their children. They point out that there was no showing of criminal conduct on Todd’s part since 1991, and no allegation that Todd had ever engaged in any kind of improper sexual contact with Joshua or Kayla while living in the same household with them. They argue that the court based its ruling largely on the unsupported opinion of a social worker that Todd was “highly likely” to reoffend when the results of a widely accepted diagnostic test to which he had submitted set his probability of reoffending within five years in the “moderate to low” range of approximately 9 percent.

They also point to hearing testimony by the LCCS expert stating that she was strongly opposed to returning any child to any home in which a diagnosed pedophile lived, regardless of that individual’s specific personal history or any quantitative determination of that individual’s likelihood of reoffending. They argue that the trial and appellate courts were obliged to begin with a presumption that Todd and Sarah were capable of rearing their own children safely, and committed reversible error in depriving them of that fundamental right based on generalized beliefs about all pedophiles rather than specific evidence establishing that reunifying their family with appropriate safeguards in place would place the children at an unacceptably high risk of abuse.

Attorneys for LCCS respond that the social worker who evaluated Todd made specific findings that he did not acknowledge the severe risks of abuse posed by a pedophile living in a household with young children, and that Sarah did not manifest an understanding or willingness to protect the children by constantly monitoring her husband’s contact with them and intervening to keep him from being alone with them in high-risk situations. They cite prior court decisions holding that, while parental rights are fundamental, they do not supersede the paramount public interest in protecting children from abuse in cases where there is a known history of criminal conduct by one parent and a lack of willingness or ability of the other parent to prevent future abuse.

Contacts
Thomas A. Sobecki, 419.2422.9908, for the parents of Kayla H. and Joshua H.

Dianne Keeler, 419.243.3362, for Lucas County Children Services.

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May Guardian Ad Litem Independently File Motion to Terminate Parental Rights Over Dependent Child?

In the Matter of: Christian Drake Thomas, Adjudged Dependent Child, Case no. 2008-0073
3rd District Court of Appeals (Crawford County)

ISSUE:  Under Ohio’s child welfare laws, does a guardian ad litem appointed by a juvenile court to protect the interest of an abused or dependent child have legal standing to independently file a motion to terminate the rights of the child’s natural parents and grant permanent custody to a county children services agency, or must such a motion be initiated by the agency to which permanent custody would be granted?

BACKGROUND:  This case asks the Court to interpret and apply several sections of R.C. Chapter 2151, the state law that sets procedures for the protection of abused, neglected and dependent children. It specifically asks the Court to review a ruling by the 3rd District Court of Appeals in which that court overturned an order of the Crawford County Juvenile Court terminating the rights of the parents of a dependent child, Christian Thomas, and awarding permanent custody of the child to the Crawford County

Department of Job and Family Services (DJFS).  In its decision, the 3rd District found that the juvenile  court’s order was void and unenforceable because the court action seeking an award of permanent custody was initiated not by the children services agency, but by a guardian ad litem appointed to protect the interests of the child. The court of appeals held that guardians ad litem do not have statutory authority to initiate motions to  award permanent custody of a dependent child.

Attorneys for the guardian ad litem and DJFS both urge the Supreme Court to overturn the 3rd District’s ruling and reinstate the award of permanent custody of Christian to DJFS. 

They point to specific language in R.C. 2151.281(I) that grants authority to guardians ad litem to “file any motions or other court papers that are in the best interest of the child.”  They cite specific language in R.C. 2151.415(F) that allows courts to conduct a hearing on the motion of a guardian ad litem to “determine whether any... dispositional order set forth in division (A)(1) to (5) of this section should be issued.” They note that subsection (A)(4) of the statute identifies as one of the dispositional orders that may be issued “An order permanently terminating the parental rights of the child’s parents.”  Thus, they assert, the plain language of the child welfare statute authorizes a guardian ad litem to file a motion seeking termination of parental rights, and authorizes a juvenile court to grant such a motion.

They acknowledge that the separate section of the statute authorizing motions to award permanent custody of a child to a children services agency, R.C. 2151.413, mentions only such agencies as authorized movants. They argue, however, that because a permanent custody order can be granted only after parental rights have been terminated, and parental rights can be terminated only to permanently place a child for adoption or with a children services agency, the only reasonable way to reconcile the provisions of the statute is to find that a guardian ad litem has standing to initiate both motions to terminate parental rights and to award permanent custody. They also note that an earlier decision of the 3rd District affirmed this reading of the law, and that the court of appeals’ ruling in this case is in conflict with the court’s own precedent on the disputed issue.

Attorneys for Naomi Agapay, the mother of Christian Thomas, urge the Court to affirm the 3rd District’s holding that a guardian ad litem does not have standing to file a motion that would, in effect, award permanent custody of her child to a children services agency that 1) did not itself initiate such a motion and 2) was not even a party to the guardian ad litem’s action. They argue that R.C. 2151.413 and 1251.414 are the specific sections of law authorizing motions for permanent custody, and those sections empower only a children services agency to initiate such motions. In order to reconcile those code sections with the sections cited by the guardian ad litem, they assert, this Court should adopt the reasoning of the 3rd District that guardians ad litem have authority to file motions recommending an award of permanent custody, but that any actual motion seeking permanent custody of a dependent child must be initiated by an authorized children services agency.

Contacts
Geoffrey L. Stoll, 419.562.4529, for the guardian ad litem.

Shane M. Leuthold, 419.562.5560, for Naomi Agapay, mother of Christian Thomas.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.