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Parent Whose Rights Have Been Terminated May Not Petition for Custody of Child as Nonparent

2004-1917. In re McBride, 2006-Ohio-3454.
Hamilton App. No. C-040456, 158 Ohio App.3d 572, 2004-Ohio-5269. Judgment reversed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-3454.pdf

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(July 19, 2006) The Supreme Court of Ohio ruled today that, when a court has terminated the rights of a parent and granted permanent custody of a child to a county children services agency, the parent does not have legal standing to later petition for custody of the child under a state juvenile court rule that authorizes “any person” to seek custody of a child.

In today's 7-0 decision, authored by Justice Judith Ann Lanzinger, the Court reversed rulings by the Hamilton County Juvenile Court and 1st District Court of Appeals that allowed a Cincinnati woman whose parental rights had been terminated in 1997 to apply for custody of her daughter by using the same legal process through which a nonparent may seek custody of a child who is a ward of the county.

In July 1996, the Hamilton County Juvenile Court found that 5-year-old Selina McBride was a neglected and dependent child and placed her in the temporary custody of the Hamilton County Department of Job and Family Services (HCJFS). In August 1997, the court permanently terminated the parental rights and responsibilities of Selina's mother, Peggy Fugate, who was incarcerated at the time, and placed Selina in the custody of HCJFS pending her placement in an adoptive home.

Selina remained in temporary foster care for nearly seven years despite the efforts of HCJFS to obtain a permanent adoption placement for her. In 2003, Fugate filed a petition with the juvenile court seeking to become the permanent custodian of Selina. The petition filed by Fugate was submitted as a non-parent, under a juvenile court rule that allows any adult Ohioan to apply to the court to become permanent custodian for a child currently in the custody of a child protection agency.

In January 2004, HCJFS filed a motion to dismiss Fugate's petition. The agency argued that, because Fugate's parental right to custody of Selina had been permanently terminated by court order, she was ineligible to apply to the court to re-establish custody. A magistrate granted the motion to dismiss, but Fugate filed an objection and the juvenile court judge reinstated her petition and certified the matter to the 1st District Court of appeals for review.

On review, the 1st District affirmed the juvenile court's judgment based on its reading of Ohio Juvenile Rule 10 as permitting “any person” to apply to a juvenile court for custody of a child.

In today's unanimous ruling, the Supreme Court held that Fugate's 2003 custody petition was, in effect, an attempt to modify or terminate the 1997 court order permanently terminating her parental rights. Justice Lanzinger wrote that two state statutes barred Fugate from initiating such an action.

“R.C. 2151.414(F) provides that, once permanent custody has been awarded to a public children services agency, such as HCJFS, ‘the parents of a child for whom the court has issued an order granting permanent custody … cease to be parties to the action,' wrote Justice Lanzinger. “Fugate's petition for custody was filed with the same case number used in the amended complaint of abuse, neglect and dependency that resulted in Fugate's parental rights being terminated. On its face, R.C. 2151.414(F) bars Fugate from participating as a party in her daughter's juvenile court case after the permanent custody order was issued.”

In addition to R.C. 2151.414(F), Justice Lanzinger noted that R.C. 2151.353(E)(2) also denies Fugate standing to file for custody of Selina. “That statute provides a mechanism to modify or terminate the dispositional order issued pursuant to R.C. 2151.414. Those who are allowed to request modification or termination are (1) any public children services agency, (2) any private child-placing agency, (3) the department of job and family services and (4) any party, other than any parent whose parental rights with respect to the child have been terminated,” wrote Justice Lanzinger. “Fugate … does not fall within one of the four categories of persons or entities with standing to seek modification or termination of a dispositional order.”

In rejecting the lower courts' reasoning that a child's parent should not be placed in separate class or in a worse position than a total stranger to seek legal custody of the child, Justice Lanzinger wrote that: “Fugate is already in a limited class of two as one of Selina's biological parents whose own actions caused her parental rights to be terminated. Nevertheless, she still may have an opportunity to obtain custody in the future, but only upon the initiative of Hamilton County Job and Family Services, which has authority under R.C. 2151.353(E)(2) to request that the juvenile court modify Selina's disposition. … In denying standing to Fugate and disallowing her to file on her own behalf for custody of Selina, we are following the statutes as they are written.”

Lashawn C. Hart, 513.946.3022, for the Hamilton County Dept. of Job and Family Services.

Christopher Kapsal, 513.241.3447, for Peggy Fugate.