O
hio Legislative Service Commission
122nd House Bill Analysis
Sub. H.B. 484** This analysis was prepared before the report of the Senate Judiciary Committee appeared in the Senate Journal. Note that the list of co-sponsors and the legislative history may be incomplete.
122nd General Assembly
(As Reported by S. Judiciary)


Requires a court to consider whether it is in the best interests of a child to return the child to the child's parents when the court is asked to modify or terminate: (1) an initial dispositional order for an adjudicated abused, dependent, or neglected child, (2) a dispositional order issued for such a child following a period of time under an order granting temporary custody of the child to a public children's services agency or a private child placing agency, or (3) a dispositional order issued for such a child following a periodic review of the child's placement or custody arrangement.
Requires a court to give notice of the filing of a petition to adopt a child and of the time and place of the hearing on the adoption petition to any guardian, custodian, or other party who has temporary custody or permanent custody of the child.
Specifies that consent to an adoption is not required of any guardian, custodian, or other party who has temporary custody or permanent custody of the child.

CONTENT AND OPERATION

Existing law

Original dispositional order for an abused, dependent, or neglected child

Under existing section 2151.353, if a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition (sec. 2151.353(A)): (1) place the child in protective supervision, (2) commit the child to the temporary custody of a public children services agency, a private child placing agency, either parent, a relative residing within or outside the state, or a probation officer for placement in a certified family foster home or in any other home approved by the court, (3) award legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child, (4) commit the child to the permanent custody of a public children services agency or private child placing agency, if the court makes certain required findings and also determines in accordance with section 2151.414 that the permanent commitment is in the best interest of the child, (5) place the child in long-term family foster care with a public children services agency or private child placing agency if either agency requests such a placement and the court finds, by clear and convincing evidence, that long-term foster care is in the best interest of the child and finds that one of three statutory-specified sets of circumstances exists, or (6) order the removal from the child's home until further order of the court of the person who committed abuse against the child, caused or allowed the child to suffer neglect, or is the parent, guardian, or custodian of a child who is adjudicated a dependent child and order any person not to have contact with the child or the child's siblings.

As part of its dispositional order, the court must journalize a case plan for the child (sec. 2151.353(D)). Any temporary custody order issued under section 2151.353 (see prior paragraph) terminates one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, if a motion is filed under section 2151.415 (see "Hearing and disposition of an abused, dependent, or neglected child after specified period of time in temporary custody," below), the temporary custody order does not terminate until the court issues a dispositional order under that section (sec. 2151.353(F)).

Hearing and disposition of an abused, dependent, or neglected child after specified period of time in temporary custody

Section 2151.415 requires any public children services agency or private child placing agency that has been given temporary custody of a child under an original dispositional order for an abused, dependent, or neglected child to file a motion with the court that issued the order of disposition requesting that any of the following orders of disposition of the child be issued by the court (sec. 2151.415(A)):

(1) An order that the child be returned home and the custody of the child's parents, guardian, or custodian without any restrictions;

(2) An order for protective supervision;

(3) An order that the child be placed in the legal custody of a relative or other interested individual;

(4) An order permanently terminating the parental rights of the child's parents;

(5) An order that the child be placed in long-term foster care;

(6) An order for the extension of temporary custody.

The motion must be filed not later than 30 days prior to the earlier of the date for the termination of the custody order (one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care) or the date set at the dispositional hearing for the hearing to be held pursuant to this section (sec. 2151.415(A)).

Upon the filing of the motion, the court must hold a dispositional hearing, with notice to all parties to the action in accordance with the Juvenile Rules. After the dispositional hearing or at a date after the dispositional hearing that is not later than one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, the court, in accordance with the best interest of the child as supported by the evidence presented at the dispositional hearing, must issue one of the orders of disposition set forth in paragraphs (1) through (6), above (sec. 2151.415(B)). The court cannot place a child in long-term foster care unless it finds, by clear and convincing evidence, that long-term foster care is in the best interest of the child and that one of three statutory sets of conditions exists. Upon the request of the agency with temporary custody of a child, the court can extend the temporary custody order of the child for up to six months if it determines at a hearing on the request that the extension is in the best interest of the child and that certain other conditions exist. The court, on its own motion or the motion of the agency or person with legal custody of the child, the child's guardian ad litem, or any other party to the action, may conduct a hearing to determine if any order issued under section 2151.415 should be modified or terminated or any other order listed in (1) through (5), above, should be issued. The court, in the best interest of the child, may modify or terminate the order or issue a new order under (1) through (5), above. (Sec. 2151.415(C), (D), and (F).)

Hearing and dispositional order for an abused, dependent, or neglected child following periodic review of the child's placement or custody arrangement or case plan

Section 2151.417 authorizes any court that issues a dispositional order pursuant to section 2151.353 (see "Original dispositional order for abused, dependent, or neglected child," above), 2151.414 (which authorizes the court to issue an order committing the child to the permanent custody of a public children services agency or private child placing agency), or 2151.415 (see "Hearing and disposition of an abused, dependent, or neglected child after specified period of time in temporary custody," above) may review at any time the child's placement or custody arrangement, the case plan prepared for the child, the actions of the public children services agency or private child placing agency in implementing that case plan, and any other aspects of the child's placement or custody arrangement. In conducting the review, the court must determine the appropriateness of any agency actions, the appropriateness of continuing the child's placement or custody arrangement, and whether any changes should be made with respect to the child's placement or custody arrangement or with respect to the actions of the agency under the child's placement or custody arrangement. Based upon the evidence presented at a hearing held after notice to all parties and the guardian ad litem of the child, the court may require the agency, the parents, guardian, or custodian of the child, and the physical custodians of the child to take any reasonable action that the court determines is necessary and in the best interest of the child or to discontinue any action that it determines is not in the best interest of the child.

Section 2151.417 also requires any court that issues a dispositional order pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised Code to hold a review hearing one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care to review the case plan and to review the child's placement or custody arrangement. The court must hold a similar review hearing no later than every 12 months after the initial review hearing until the child is adopted, returned to the parents, or the court otherwise terminates the child's placement or custody arrangement, except that the dispositional hearing held pursuant to section 2151.415 (see "Hearing and disposition of an abused, dependent, or neglected child after specified period of time in temporary custody," above) takes the place of the first review hearing to be held under section 2151.417. (Sec. 2151.417(B) and (C).)

After the review hearing, the court must take the following actions based upon the evidence presented (sec. 2151.417(F)):

(1) Determine whether the conclusions of the administrative review are supported by a preponderance of the evidence and approve or modify the case plan based upon that evidence;

(2) If the child is in temporary custody, do all of the following: (a) determine whether the child can and should be returned home with or without an order for protective supervision, (b) if the child can and should be returned home with or without an order for protective supervision, terminate the order for temporary custody, and (c) if the child cannot or should not be returned home with an order for protective supervision, determine whether the agency currently with custody of the child should retain custody or whether another public children services agency, private child placing agency, or an individual should be given custody of the child.

(3) If the child is in permanent custody, determine what actions are required by the custodial agency and of any other organizations or persons in order to facilitate an adoption of the child and make any appropriate orders with respect to the custody arrangement or conditions of the child, including, but not limited to, a transfer of permanent custody to another public children services agency or private child placing agency;

(4) Journalize the terms of the updated case plan for the child.

Operation of the bill

The bill provides that the court, in determining whether to return the child to the child's parents, must consider whether it is in the best interest of the child at any hearing in which a court is asked to modify or terminate one of the following orders (sec. 2151.42):

(1) An original order of disposition for an abused, dependent, or neglected child;

(2) An order of disposition issued for such a child after the child has been in the temporary custody of a public children services agency or a private child placing agency for a specified period of time;

(3) An order of disposition issued for such a child following a periodic review of the child's case plan or placement or custody arrangement.

The bill also specifically requires the court to comply with the above requirement when it holds a hearing on a motion to modify or terminate an original dispositional order for an abused, dependent, or neglected child (sec. 2151.353(E)(2)). The bill specifically requires the court to comply with the above requirement when it issues an order of disposition following an abused, dependent, or neglected child being in the temporary custody of a public children services agency or private child placing agency for a specified period of time, determines whether to extend the temporary custody of such a child with such an agency or to grant an additional extension of such an order, or determines whether to modify or terminate a dispositional order issued after such a child has been in the temporary custody of such an agency for a specified period of time (sec. 2151.415(B), (D)(1), (D)(2), (D)(3), and (F)). Finally, the bill requires the court to comply with the above requirement when it amends any dispositional order of an abused, dependent, or neglected child following a periodic review of the child's case plan or custody arrangement or when it approves or modifies a case plan of such a child following a periodic review of such a child's case plan (sec. 2151.417(B) and (F)(2)).

Notice to grandparents in adoption proceedings

Existing law

In existing law, before a minor may be adopted, certain persons generally are required to consent to the adoption (see COMMENT 1). In addition, the Revised Code specifically describes persons whose consent is not required before an adult or a minor may be adopted (see COMMENT 2). After a petition to adopt an adult or a minor is filed, the court empowered to grant the petition for adoption must fix a time and place for hearing the petition. (Secs. 3107.06, 3107.07, and 3107.11(A).) At least 20 days before the date of the hearing, the court must give notice of the filing of the petition and of the time and place of the hearing to all of the following (sec. 3107.11(A)):

(1) The Department of Human Services;

(2) Any juvenile court, agency, or person whose consent to the adoption is required by the Adoption Laws but who has not consented;

(3) Specified persons whose consent is not required in the Adoption Laws and who have not consented (see COMMENT 3).

All of the preceding notices must be given as specified in the Civil Rules. Proof of the giving of notice must be filed with the court before the petition is heard. (Sec. 3107.11(B).)

Operation of the bill

The bill requires that the court give notice of the filing of the adoption petition and of the time and place of the hearing to any guardian, custodian, or other party who has temporary custody or permanent custody of the child. The bill also specifies that consent to the adoption is not required of any guardian, custodian, or other party who has temporary custody or permanent custody of the child. (Secs. 3107.07(L) and 3107.11(A)(4).)

COMMENT

1. Generally, a petition to adopt a minor may be granted only if written consent to the adoption has been executed by all of the following persons and entities (sec. 3107.06):

(a) The mother of the minor;

(b) The father of the minor, if any of the following apply: (i) the minor was conceived or born while the father was married to the mother, (ii) the minor is his child by adoption, (iii) prior to the date the petition was filed, it was determined by a court proceeding or an administrative proceeding that he has a parent and child relationship with the minor, or (iv) he acknowledged paternity of the child and that acknowledgment has become final.

(c) The putative father of the minor;

(d) Any person or agency having permanent custody of the minor or authorized by court order to consent;

(e) The juvenile court that has jurisdiction to determine custody of the minor, if the legal guardian or custodian of the minor is not authorized by law or court order to consent to the adoption;

(f) The minor, if more than 12 years of age, unless the court, finding that it is in the best interest of the minor, determines that the minor's consent is not required.

2. Consent to adoption is not required of any of the following persons (sec. 3107.07):

(a) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner;

(b) The putative father of a minor if either of the following applies: (i) the putative father fails to register as the minor's putative father with the Putative Father Registry not later than 30 days after the minor's birth, or (ii) the court finds that the putative father is not the father of the minor, the putative father has willfully abandoned or failed to care for and support the minor, or the putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor's placement in the home of the petitioner, whichever occurs first;

(c) A parent who has entered into a voluntary permanent custody surrender agreement under specified circumstances;

(d) A parent whose parental rights have been terminated by order of a juvenile court;

(e) A parent who is married to the petitioner and supports the adoption;

(f) The father, or putative father, of a minor if the minor is conceived as the result of the commission of rape by the father or putative father and the father or putative father is convicted of or pleads guilty to the commission of that offense;

(g) A legal guardian or guardian ad litem of a parent judicially declared incompetent in a separate court proceeding who has failed to respond in writing to a request for consent, for a period of 30 days, or who, after examination of the written reasons for withholding consent, is found by the court to be withholding consent unreasonably;

(h) Any legal guardian or lawful custodian of the person to be adopted, other than a parent, who has failed to respond in writing to a request for consent, for a period of 30 days, or who, after examination of the written reasons for withholding consent, is found by the court to be withholding consent unreasonably;

(i) The spouse of the person to be adopted, if the failure of the spouse to consent to the adoption is found by the court to be by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances that make it impossible or unreasonably difficult to obtain the consent or refusal of the spouse;

(j) Any parent, legal guardian, or other lawful custodian in a foreign country, if the person to be adopted has been released for adoption pursuant to the laws of the country in which the person resides and the release of such person is in a form that satisfies the requirements of the Immigration and Naturalization Service of the United States Department of Justice for purposes of immigration to the United States;

(k) Except as provided in paragraphs (g) and (h), above, a juvenile court, agency, or person given notice of the petition that fails to file an objection to the petition within 14 days after proof is filed that the notice was given.

3. The court must give notice of the filing of the petition and of the time and place of hearing to the following persons whose consent is not required and who have not consented to the adoption (secs. 3107.07(A), (G), (H), and (I) and 3107.11):

(a) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner;

(b) A legal guardian or guardian ad litem of a parent judicially declared incompetent in a separate court proceeding who has failed to respond in writing to a request for consent, for a period of 30 days, or who, after examination of the written reasons for withholding consent, is found by the court to be withholding consent unreasonably;

(c) Any legal guardian or lawful custodian of the person to be adopted, other than a parent, who has failed to respond in writing to a request for consent, for a period of 30 days, or who, after examination of the written reasons for withholding consent, is found by the court to be withholding consent unreasonably;

(d) The spouse of the person to be adopted, if the failure of the spouse to consent to the adoption is found by the court to be by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances that make it impossible or unreasonably difficult to obtain the consent or refusal of the spouse.

HISTORY

ACTION DATE JOURNAL ENTRY

Introduced 06-11-97 p. 1091
Reported, H. Family Services 03-11-98 p. 2252
Passed House (94-3) 03-18-98 pp. 2280-2281
Reported, S. Judiciary --- ---



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