Terminated Parent Seeking Custody When Children's Services Fails to Place Child

In re McBride (2006), 110 Ohio St. 3d 19. (Ohio Supreme Court)

Facts

The natural mother was in jail when her six-year-old child was found living alone. The juvenile court terminated the mother's parental rights for neglect, and Children's Services made a plan for adoption. But by age 13 the child still had not been adopted. The mother, claiming her situation had improved, petitioned for custody.

Children's Services argued that the mother lacked standing to claim custody because her rights were terminated. The juvenile court found that the mother had standing under Juvenile Court Rule 10, which let "any person" petition for custody. The Appellate Court upheld the decision. Children's Services appealed to the Ohio Supreme Court, citing Ohio Rev. Code 2151.414(F) and 2151.353(E)(2).

Law

R. C. 2151.414(F): The parents of a child for whom the court has ordered permanent custody cease to be parties to the action.

R. C. 2151.353(E)(2): The only parties who may request modification of a permanent custody order are (1) a public children's services agency (2) a private child-placing agency (3) Job and Family Services (4) any parent of the child whose rights have not been terminated.

Ohio Constitution, Article IV, Section 5(B): The juvenile court rules cannot abridge, enlarge, or modify any substantive right (as opposed to procedural right).

Issue

Does a natural parent who has lost permanent custody of a child have standing as a non-parent to petition for custody of that child where the mother has substantially improved her conditions and parenting ability, and the child has not been adopted as planned?

Holding

No.

1. The mother was essentially seeking to modify the permanent custody order, and she was not one of the four parties allowed to do so under the statutes.
2. The questions of whether the mother is now a fit parent, or whether granting her custody would be in the children's best interest, were not reached because the mother lacked standing.
3. The right to petition for custody was substantive, not procedural, thus Juv.R. 10 could not override the statutes.
4. No court below found fault with Children's Services' efforts to find an adoptive home.
5. Accordingly, the mother could gain custody of the child in the future, but only on Children's Services' initiative.

My Comment

I very begrudgingly agree with the Ohio Supreme Court that the mother may not petition for custody. My gut reaction, however, is, if Children's Services can't find an adoptive family for the child after seven years, why not give mom a try? That does not involve a constitutional right, however, so change must come from the legislature.

I also agree that the right to petition for custody is substantive, not procedural. But one must wonder just what purpose the juvenile statutes here serve. Obviously, the terminated parent should not be allowed to modify the order terminating their rights soon after the order. But what is the point of leaving that parent forever without standing where Children's Services cannot find an adoptive home after seven years and the parent claims to have improved her condition? It seems the child's best interest test should apply then. Unfortunately, the courts lack the authority to make that policy. It may be that the State cannot afford to have terminated parents regularly returning years later to petition for custody. On the other hand, there may be a point to requiring Children's Services to find adoptive homes for children within so many years, lest the permanent custody be subject to modification by a terminated parent. For now, Children's Services has the decision-making power in that situation.

The court appeared to leave open the questions of whether a parent who had some post-termination relationship with child, or where the failure to place the child for adoption was traceable to some fault of Children's Services, would have standing to seek custody.