author: Cunningham, Judge. Mock, P.J., concurring in part and dissenting in part.

text:
    BANKER'S CHOICE, LLC, and Stough Development Corporation, Plaintiffs-Appellees, v. ZONING BOARD OF APPEALS OF the CITY OF CINCINNATI, Defendant, and City of Cincinnati, Defendant-Appellant.
    NO. C-170280
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: July 31, 2018
    Barrett & Weber, C. Francis Barrett and Joshua L. Goode, Cincinnati, for Plaintiffs-Appellees,
    Paula Boggs Muething, City Solicitor, and Marion E. Haynes, III, Terrance A. Nestor and Kevin M. Todd, for Defendant-Appellant,
    Squire Patton Boggs LLP, Scott A. Kane and Larisa M. Vaysman, Cincinnati, for Amicus Curiae Cincinnati Center City Development Corporation.
   Cunningham, Judge.

{¶ 1} Defendant-appellant the city of Cincinnati appeals the trial court's adoption of a magistrate's decision ordering the issuance of a certificate of appropriateness to plaintiffs-appellees Banker's Choice, LLC, and Stough Development Corporation ("Banker's Choice"), to demolish the Davis Furniture Building, a historic structure located at 1119-1123 Main Street. Because the trial court erred as a matter of law in its application of the historic-preservation provisions of the zoning code, we reverse, in part.

{¶ 2} Banker's Choice, an experienced developer of urban properties in Cincinnati, had purchased and renovated properties on Main Street known as the Hanke Building. The Davis Furniture Building stood immediately across Main Street from the Hanke Building. For more than a decade the Davis Furniture Building had been permitted to deteriorate. As the trial court later found, Banker's Choice purchased the Davis Furniture Building at a sheriff's sale for $125,000 "to alleviate the 'eyesore' * * * the building had become and to protect the economic well-being of their property across the street."

{¶ 3} After purchasing the Davis Furniture Building, Banker's Choice sought a certificate of appropriateness for demolition from the Historic Conservation Board pursuant to the Cincinnati Zoning Code. See Cincinnati Municipal Code 1435-01-C and 1435-09-01. The historic-preservation provisions of the zoning code seek to "maintain and enhance the distinctive character of historic buildings and areas," to "safeguard the heritage of the city," and to "maintain the historic urban fabric of the city." Cincinnati Municipal Code 1435-03(f), 1435-03(g), and 1435-03(l).

{¶ 4} To avoid the demolition of the Davis Furniture Building and to save it for renovation, three local entities with extensive urban redevelopment experience stepped forward to purchase the building. The Cincinnati Center City Development Corporation ("3CDC") offered to purchase the property for $125,000 plus costs and expenses up to $200,000. Grandin Properties offered $218,240. And Tender Mercies offered $350,000. Not only were these offers above the Banker's Choice purchase price, the latter two offers were well above the $155,220 assessed value of the property.

{¶ 5} On December 4, 2014, after holding three hearings and reviewing a voluminous record, the Historic Conservation Board adopted the recommendation of the city's Urban Conservator, and denied Banker's Choice's request. Banker's Choice appealed to the Zoning Board of Appeals of Cincinnati ("the Zoning Board"), which affirmed the Historical Conservation Board's determination. The Zoning Board reviewed the Historical Conservation Board's decision pursuant to Cincinnati Municipal Code 1435-09-2, which guides the determination of when a property owner is entitled to a certificate of appropriateness for demolition. The Zoning Board concluded that the preponderance of the substantial, reliable, and probative evidence confirmed that Banker's Choice had failed to demonstrate that it would be deprived of "all economically viable use[s] of the property * * * without approval" of the certificate of appropriateness for demolition.

{¶ 6} Pursuant to R.C. 2506.01 and 2506.04, Banker's Choice appealed to the Hamilton County Common Pleas Court. The matter was referred to a magistrate. The parties presented additional evidence before the magistrate. The magistrate vacated the decision of the Zoning Board and the Historic Conservation Board. In reaching his decision, the magistrate found that the Historic Conservation Board's procedures were "deeply flawed and violated [Banker's Choice's] due process rights," that the Davis Furniture Building was not a "historical asset" or a "historic structure" as those terms are defined in the code, and that the three offers to purchase the building were "illusory" and "not bona fide offers." See Cincinnati Municipal Code 1435-01-H and 1435-01-H5. It also held as a matter of law that the standard, identified in Cincinnati Municipal Code 1435-09-2, for determining when the Historic Conservation Board may issue a certificate of appropriateness is "unconstitutional and contrary to Ohio law." The magistrate found that Banker's Choice had proven that it was not economically viable to rehabilitate the property. Accordingly, it ordered the Historical Conservation Board to issue a certificate of appropriateness for demolition to Banker's Choice. The city filed timely objections to the magistrate's decision on each of these matters.

{¶ 7} The trial court took additional evidence and held extensive hearings on the city's objections before making its own finding that Banker's Choice was not denied due process in the administrative proceedings, that the Davis Furniture Building was "part of a group of buildings that may be deemed to be of an historically significant area and era," and that "at least one and perhaps all three" offers to purchase the property were made "in good faith." The trial court also did not "question or decide the constitutionality of the City ordinances that find the Davis Buildings to be historic assets." Without reaching an "[a]ssessment of fault" for the failure to reach an agreement of sale, the trial court treated the "fact that no one purchased the building" as "substantial evidence that any real or perceived economic hardship * * * was not relieved" by the purchase offers. On this basis, the trial court overruled the objections, adopted the magistrate's decision, and ordered the issuance of a certificate of appropriateness for the building's demolition.

{¶ 8} The trial court also granted, in part, the city's motion for a preliminary injunction directing Banker's Choice to provide the minimum repairs and maintenance to the building necessary for public safety. But in light of its ruling that the building was to be demolished, the court denied that portion of the city's motion, which would have required additional efforts to restore the building to compliance with other aspects of the city's building code.

{¶ 9} The city appealed. We permitted 3CDC to appear as amicus curiae.

{¶ 10} In its first assignment of error, the city contends that the trial court erred in vacating the decision of the Zoning Board and finding that a certificate of appropriateness for the demolition of the Davis Furniture Building should issue. The city's principal argument is that the trial court substituted its judgment for that of the Zoning Board and thus exceeded the scope of its limited and deferential review of the administrative body's actions.

{¶ 11} But our review of an administrative appeal under R.C. 2506.04 is a limited one focused on the existence of legal error in the trial court. See Weitzel v. Cincinnati , 1st Dist. Hamilton No. C-150415, 2016-Ohio-1322, 2016 WL 1244511, ¶ 10-11 ; see also Lohman v. Cincinnati , 1st Dist. Hamilton No. C-170242, 2018-Ohio-2505, 2018 WL 3201734, ¶ 23. Under R.C. 2506.04, the common pleas court may determine whether the administrative decision of the Zoning Board was "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record." It may make factual and legal determinations and, as here, provide for the introduction of new or additional evidence. See Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23, citing Kisil v. Sandusky , 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984).

{¶ 12} But the focus of this court's inquiry is not the Zoning Board's ruling. It is the common pleas court's decision. See Cleveland Clinic at ¶ 27. Under R.C. 2506.04, this court's authority is limited to reviewing the common pleas court's decision on "questions of law" only, and does not encompass that court's power to weigh the evidence. Id. at ¶ 25, citing Henley v. Youngstown Bd. of Zoning Appeals , 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000) ; see also Cincinnati Bengals, Inc. v. Papania , 92 Ohio App.3d 785, 787, 637 N.E.2d 330 (1st Dist.1993) ("Subsequent appeals to this court are limited to questions of law."). Thus our standard of review "permits reversal only when the court of common pleas errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic at ¶ 30.

{¶ 13} In its written decision, the trial court correctly identified the law governing its approval or denial of Banker's Choice's application for a certificate of appropriateness. Cincinnati Municipal Code 1435-09-2(b) provides that a certificate of appropriateness should issue if the property owner has demonstrated by credible evidence that it would suffer economic hardship if the certificate were not approved. The trial court further noted that in reaching a determination of whether Banker's Choice had demonstrated an economic hardship, it was required to consider three factors:

(i) Will all economically viable use of the property be deprived without approval of a Certificate of Appropriateness;
(ii) Will the reasonable investment-backed expectations of the property owner be maintained without approval of a Certificate of Appropriateness; and
(iii) Whether the economic hardship was created or exacerbated by the property owner.

Cincinnati Municipal Code 1435-09-2(b).

{¶ 14} In evaluating these factors for the existence of an economic hardship, the trial court was permitted to consider, among other matters, "[a]ny listing of property for sale or rent, price asked, and offers received, if any, within the previous two years, including testimony and relevant documents * * *." Cincinnati Municipal Code 1435-09-2(bb).

{¶ 15} But the trial court's analysis quickly focused not on the three inquiries mandated by Cincinnati Municipal Code 1435-09-2(b), but on the failure of the parties to consummate a sale of the property. The trial court found that the "fact that no one purchased the building" was "substantial evidence that any real or perceived economic hardship * * * was not relieved" by the purchase offers. The court's determination that the "inability to sell" the building constituted evidence of economic hardship truncated its analysis. Its failure to continue on and to determine whether Banker's Choice had been denied all economically viable use of the Davis Furniture Building, whether it could have maintained its reasonable investment-backed expectations, and whether it had created or exacerbated its own economic hardship before approving a certificate of appropriateness was error. See Cincinnati Municipal Code 1435-09-2(b); see also Cleveland Clinic , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, at ¶ 30.

{¶ 16} Moreover, in applying Cincinnati Municipal Code 1435-09-2(b), the findings necessary to approve a certificate, particularly of the property owner's expectations, must be based upon objective standards, and not upon the subjective perceptions of the property owner. The owner's expectations must be "reasonable"

ones based upon the owner's interests in the property sought to be demolished and not solely upon its expectations for nearby properties.

{¶ 17} When a trial court rules on objections to a magistrate's decision, the court "shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." (Emphasis added.) Civ.R. 53(D)(4)(d). When, as here, in exercising its independent review, the trial court's judgment has modified the magistrate's decision and conflicts with it to such a degree by rejecting important factual findings that underpin the magistrate's decision, by employing its new factual findings in its analysis, and by choosing not to reach the magistrate's legal holding regarding constitutional issues, we cannot say that the magistrate's decision and the trial court's judgment can be read together. The first assignment of error is sustained.

{¶ 18} The city's second assignment of error, in which it asserts that the trial court erred in denying that portion of its motion for a preliminary injunction directing Banker's Choice to effect repairs and improvements to the building to bring it into compliance with the building code, is overruled. The grant or denial of an injunction is consigned to the sound discretion of the trial court. See Garono v. State , 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988) ; see also Faber v. Queen City Terminals, Inc. , 93 Ohio App.3d 197, 202, 638 N.E.2d 115 (1st Dist.1994).

{¶ 19} The trial court carefully considered the motion and had granted that part of the city's motion requiring repairs and maintenance to the building necessary for public safety. Since the trial court's decision was well supported by a sound reasoning process, we will not disturb its decision as to the preliminary injunction. See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990) ; see also Faber at 202-03, 638 N.E.2d 115. The second assignment of error is overruled.

{¶ 20} Therefore, the trial court's judgment ordering the issuance of a certificate of appropriateness for demolition is reversed, and the cause is remanded to the trial court for the application of the proper standard consistent with law and this opinion. That portion of the trial court's judgment denying, in part, the city's motion for a preliminary injunction is affirmed.

Judgment affirmed in part, reversed in part, and cause remanded.

Zayas, J., concurs.

Mock, P.J., concurs in part and dissents in part.

Mock, P.J., concurring in part and dissenting in part.

{¶ 21} While I concur with the majority's determination of appellant's second assignment of error, I would reach a different result on the first. The majority concluded that the trial court failed to apply the proper test when making the determination that Banker's Choice had been denied all economically viable use of the Davis Furniture Building, whether it could have maintained its reasonable investment-backed expectations, and whether it had created or exacerbated its own economic hardship before approving a certificate of appropriateness. I disagree.

{¶ 22} This court's review of the decision of the trial court on administrative appeals is strictly limited. "The standard of review for courts of appeals, however, is limited to questions of law and 'does not include the same extensive power to weigh the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court.' " Henley , 90 Ohio St.3d at 147, 735 N.E.2d 433, quoting Kisil , 12 Ohio St.3d at 34, 465 N.E.2d 848, fn. 4 ; see R.C. 2506.04.

{¶ 23} I begin with the proposition that the trial court set forth the proper factors to consider. The majority agrees on this point, stating that "the trial court correctly identified the law governing its approval or denial of Banker's Choice's application for a certificate of appropriateness," citing the three factors listed in Cincinnati Municipal Code 1435-09-2(b). Agreeing as we do that the trial court cited the appropriate criteria, we next consider whether the trial court considered this criteria in making its decision.

{¶ 24} In its analysis, the trial court discussed the inability of Banker's Choice to sell the property as an alternative to seeking the demolition of the buildings. The trial court concluded that "the fact * * * that no one purchased the building is substantial evidence that any real or perceived economic hardship as to Appellants was not relieved." The majority indicates that this statement "truncated" its analysis, and that the trial court did not consider the appropriate factors under Cincinnati Municipal Code 1435-09-02(b). But the trial court did not limit its analysis to this consideration.

{¶ 25} The trial court also concluded that the decision issued by the magistrate on this point was "appropriate, fair, and [a] just finding." The trial court also concluded that the magistrate "followed the law on the economic hardship aspect" of the analysis. In his decision, the magistrate set forth in detail how Banker's Choice met its burden, by a preponderance of the evidence, to show that the factors set forth in Cincinnati Municipal Code 1435-09-2(b) point to issuance of the certificate of appropriateness. In eight pages of his 25-page decision, the magistrate set forth the testimony that demonstrated that Banker's Choice had proven it was not economically feasible to rehabilitate the building. The analysis, much of which was summarized by the trial court, was sufficient to support the decision below.

{¶ 26} The ability of this court to reverse the decision of a trial court in an administrative appeal is limited to situations where the trial court misapplied the law. See R.C. 2506.04. In this case, the trial court cited the proper factors to consider when deciding whether the issuance of a certificate of appropriateness is warranted. The trial court cited the proper standard of review that it is to apply when both considering the decision of the administrative agency, and the decision of its magistrate. The trial court based its decision in part on its own analysis and in part on its agreement with the substantial analysis already conducted by the magistrate. When read together, the magistrate's analysis and the trial court's own review of the record render the trial court's judgment sufficiently complete to permit this court to affirm under the limited legal-error analysis provided by R.C. 2506.04. I would overrule the first assignment of error.

      3CDC's motion to intervene in the trial court pursuant to Civ.R. 24 had been denied.


source: Caselaw Access Project

author: PIETRYKOWSKI, J.

license: Public Domain

text:
    IN RE ADOPTION OF A.C.B.
    No. L-18-1043
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: August 3, 2018
    Robert S. Salem, for appellant.
    James L. Rogers and Katrin E. McBroom, for appellee.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, Probate Division, finding under R.C. 3107.07 that appellant-father's, B.D., consent is not required in appellee's, J.B., adoption of the minor child, A.C.B. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} The underlying facts in this appeal are not in dispute. In June 2010, appellant married A.C. One year later, on June 21, 2011, A.C. gave birth to their child, A.C.B. Appellant and A.C. separated in 2012, and the divorce was finalized in April 2013. As part of the settlement agreement in the divorce proceedings, full custody of A.C.B. was awarded to A.C., and appellant agreed to pay $85 per week as support for the child.

{¶ 3} Thereafter, in July 2013, appellant, who has permanent residency status in the United States, returned to Kosovo. Appellant has not since been back to the United States, but through an informal agreement with A.C. he has communicated with A.C.B. through Skype.

{¶ 4} In April 2015, A.C. married appellee, and on July 20, 2017, appellee petitioned to adopt A.C.B. In the petition, appellee alleged that appellant's consent was not required pursuant to R.C. 3107.07(A), which provides,

Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause * * * 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.

{¶ 5} Relevant here, two days before the petition was filed, appellant made one child support payment of $200. Prior to that, the last child support payment made by appellant was on June 27, 2016, in the amount of $100.

{¶ 6} On February 7, 2018, the trial court held a hearing on whether appellant's consent was required for the adoption, at which appellant and A.C. testified. Following the hearing, on February 8, 2018, the trial court entered its order finding that appellant has failed to provide for the maintenance and support of the child as required by judicial decree, and that his failure was not justifiable. Therefore, the trial court ordered that appellant's consent was not required for the adoption.

II. Assignments of Error

{¶ 7} Appellant has timely appealed the February 8, 2018 judgment of the trial court, and now raises two assignments of error for our review:

1. The Court abused its discretion by not recognizing controlling precedent in construing the meaning of maintenance and support for purposes of R.C. 3107.07(A).
2. For the above reason, the trial court erred in finding that Petitioner proved, by clear and convincing evidence, that the father of the child, [appellant], failed to support his child for one year prior to the filing of [the] petition for adoption.

III. Analysis

{¶ 8} Appellant's assignments of error are interrelated, and present the issue of whether a single payment of child support made within the relevant one-year period prior to the filing of the adoption petition constitutes maintenance and support sufficient to preserve his right to object to the adoption under R.C. 3107.07(A). As a backdrop for our analysis of this issue, we note that "we are properly obligated to strictly construe [the language of R.C. 3107.07(A) ] to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights." In re Adoption of Holcomb , 18 Ohio St.3d 361, 366, 481 N.E.2d 613 (1985).

{¶ 9} In support of his position that the trial court abused its discretion when it found that appellant failed to provide maintenance and support, appellant cites Celestino v. Schneider , 84 Ohio App.3d 192, 616 N.E.2d 581 (6th Dist.1992). In that case, the trial court found that the father had failed to provide for the maintenance and support of the child where the father had made only one partial child support payment of $36 in the year preceding the adoption petition. On appeal, we reversed. We reasoned that "[a] court's finding that a parent failed to provide for support and maintenance for the one-year period prior to the filing of the adoption petition is tantamount to a determination that the parent abandoned the child and thus forfeited parental rights. The inquiry is not whether the parent may be held in contempt, but whether the parent's failure to support as ordered is of such magnitude as to be the equivalent of abandonment." Id. at 196, 616 N.E.2d 581. Thus, we held that "any contribution toward child support, no matter how meager, satisfies the maintenance and support requirements of R.C. 3107.07(A)," and therefore the trial court's determination was incorrect "as a matter of law." Id. at 196-197, 616 N.E.2d 581.

{¶ 10} This view was shared by several other Ohio appellate districts. See, e.g., In re Adoption of R.M. , 7th Dist. Mahoning No. 07 MA 232, 2009-Ohio-3252, 2009 WL 1914376, ¶ 81 (trial court abused its discretion where it found that father's child support payments totaling $185 did not constitute maintenance and support); In re Adoption of Allonas , 3d Dist. Crawford No. 3-01-27, 2002-Ohio-2723, 2002 WL 1299766, ¶ 14 (child support payment of $117.70 constitutes maintenance and support, and trial court's contrary finding was against the manifest weight of the evidence); In re Adoption of Myers , 4th Dist. Pickaway No. 94 CA 28, 1995 WL 592059, *4 (Sept. 28, 1995) (one child support payment of $45.70 is sufficient to require father's consent to adoption).

{¶ 11} However, other districts reached the opposite conclusion. See In re R.N.L.O. , 12th Dist. Warren No. CA2007-04-049, 2007-Ohio-4215, 2007 WL 2350987, ¶ 15 (three child support payments totaling $300 was negligible and thus insufficient to constitute maintenance and support); In re Adoption of Tyler K. Kilbane & Ashley Kilbane , 130 Ohio App.3d 203, 207-208, 719 N.E.2d 1012 (8th Dist.1998) (four child support payments of $220 made shortly before the petition for adoption was filed do not constitute maintenance and support under R.C. 3107.07(A) ); In re Adoption of Wagner , 117 Ohio App.3d 448, 454, 690 N.E.2d 959 (11th Dist.1997) (child support payments totaling $329.40 where the father could have earned and paid more money did not constitute maintenance and support); In re Adoption of Knight , 97 Ohio App.3d 670, 672, 647 N.E.2d 251 (10th Dist.1994) (single payment of $20 in child support was de minimis and did not constitute maintenance and support of the child); In re Adoption of Thomas , 5th Dist. Licking No. CA-3311, 1987 WL 33014, *1 (Dec. 22, 1987) (one child support payment of $35 or $50 is not sufficient to constitute maintenance and support).

{¶ 12} Notably, this split amongst the districts was anticipated by Justice Douglas in his concurrence in In re Adoption of Bovett , 33 Ohio St.3d 102, 107, 515 N.E.2d 919 (1987) :

[T]his case presents us with an opportunity to decide what the language of [ R.C. 3107.07(A) ] means concerning support and/or communication during the critical one-year period. I agree that this initial determination should be made by the probate judge and his or her judgment should not be tampered with absent an abuse of discretion. What specific guidance needs to be given, however, is whether the making of one payment of support during the year or the sending of a Christmas card is enough to frustrate the operation of the statute. Certainly the legislature could not have meant such a result. In fact, it is pertinent to note that the statute, R.C. 3107.07(A), contains other verbiage that has not been considered or discussed. That section requires "* * * maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding * * * the filing of the adoption petition * * *." (Emphasis added.) Literally interpreted, this could mean that the missing of one or two payments of support, as required by the court order then in effect, would be enough to trigger the operation of R.C. 3107.07(A), thereby negating the need for consent to adoption. This would likewise not be fair or equitable even if such limited non-payment was "without justifiable cause." Thus, the determination must be left to the trial judge who can view the entire spectrum of events and the rights, duties and responsibilities of all the parties appearing in the case.
In short, I think we need to set forth that the probate court is not bound to negate the effect of the statute simply because a natural parent has made a payment or two during the year or has communicated once or twice during the year. Until this court meets and decides that issue, inconsistent judgments of trial courts and courts of appeals on the question will continue to prevail.

{¶ 13} Subsequently, in In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 25, the Ohio Supreme Court endeavored to answer Justice Douglas's question of "whether a parent's making a single payment of support or sending a Christmas card is sufficient support to frustrate R.C. 3107.07(A), or on the other end of the spectrum, whether a parent's missing one or two payments of support in the year preceding the filing of an adoption petition negates the need for parental consent to adoption." In answering the question, the court held that "[a] trial court has discretion to make these determinations, and * * * an appellate court applies an abuse-of-discretion standard when reviewing a probate court decision regarding whether a financial contribution from a parent constitutes maintenance and support for purposes of R.C. 3107.07(A)." Id. In In re Adoption of M.B. , the biological father failed to make any child support payments as required by law or judicial decree, but did send a $125 gift card to the child at Christmas, and $60 in cash for the child's birthday. Id. at ¶ 26. The Ohio Supreme Court held that the gift card and birthday cash were de minimis gifts, not maintenance and support made pursuant to court order, and thus the father's consent was not required for adoption. Id.

{¶ 14} Since In re M.B. , the Seventh District in In re Adoption of J.D.T. , 2012-Ohio-4537, 978 N.E.2d 602 (7th Dist.), affirmed the trial court's finding that the father's consent was required for adoption. In that case, the trial court found that the father's single child support payment of $44.05 was sufficient to constitute support and maintenance. Id. at ¶ 4. On appeal, the Seventh District did not address that aspect of the trial court's finding, however, but instead held that the petitioner did not meet his burden to prove that the father's failure to provide support and maintenance was not justifiable. Id. at ¶¶ 38-39.

{¶ 15} In In re Adoption of I.R.R.M. , 5th Dist. Muskingum No. CT2013-0053, 2014-Ohio-1719, 2014 WL 1632136, ¶ 29, the Fifth District held that the trial court did not abuse its discretion when it found that the petitioner had failed to prove by clear and convincing evidence that the father did not provide support and maintenance in light of a $1,279 child support payment made from the father's tax refund, which payment was subsequently refused and returned to the father.

{¶ 16} Similarly, in In re Adoption of D.M.E. , 5th Dist. Muskingum No. CT2014-0019, 2014-Ohio-3370, 2014 WL 3811343, ¶ 28, the Fifth District held that the trial court's finding that the mother provided support and maintenance was not an abuse of discretion where the mother made three support payments in the year prior to the filing of the petition for adoption, and where she immediately notified her employer and the Child Support Enforcement Agency of her support obligation upon her new employment.

{¶ 17} Finally, the Fourth District reached the opposite result in In re Adoption of K.N.W. , 4th Dist. Athens Nos. 15CA36, 15CA37, 2016-Ohio-5863, 2016 WL 4986548, ¶ 2. There, the court held that the trial court did not abuse its discretion when it found that the father had failed to provide support and maintenance where he paid only $328 total in child support for the previous year, when his monthly obligation was $367.20.

{¶ 18} In his appellate brief, appellee urges that the correct standard to apply is the one announced in In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, at ¶ 25, and not our rule in Celestino , 84 Ohio App.3d at 196-197, 616 N.E.2d 581, that any contribution toward child support, no matter how meager, constitutes support and maintenance as a matter of law. In considering the application of the two cases, and reviewing the applicable case law, we agree with appellee that In re Adoption of M.B. controls.

{¶ 19} While we recognize that In re Adoption of M.B. distinguished payments made pursuant to a child support order from payments that were gratuitous gifts, and that the factual situation in In re Adoption of M.B. concerned only gift payments and not payments that were required by law or judicial decree, we nonetheless find that the rule announced by the Supreme Court of Ohio is sufficiently broad to implicitly overrule our holding in Celestino . In particular, we note that under In re Adoption of M.B. , the trial court has discretion to determine "whether a parent's making a single payment of support * * * is sufficient support to frustrate R.C. 3107.07(A), or on the other end of the spectrum, whether a parent's missing one or two payments of support in the year preceding the filing of an adoption petition negates the need for parental consent to adoption." In re Adoption of M.B. at ¶ 25. We find that the reference to missing one or two payments of support necessarily connotes that the Ohio Supreme Court is referring to child support payments and not solely gifts because obviously one cannot miss gratuitously making a "voluntary transfer of property to another." Id. at ¶ 26. Thus, we are compelled to follow the standard announced by the Ohio Supreme Court that a trial court has discretion to determine whether the payments made by the contesting parent constitute maintenance and support under R.C. 3107.07(A), and that the trial court's determination shall not be disturbed absent an abuse of discretion. Furthermore, in light of this standard, we must overrule our decision in Celestino to the extent that it holds that a single payment of child support constitutes maintenance and support as a matter of law.

{¶ 20} Turning now to the merits of this case, we hold that the trial court did not abuse its discretion when it found that appellant failed to provide maintenance and support for his child, A.C.B. An abuse of discretion connotes that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Here, the undisputed evidence is that for the year prior to the filing of the adoption petition, despite being gainfully employed, appellant has only made one payment of $200, which is equivalent to less than three weeks of his child support obligation, and that payment was made two days before the adoption petition was filed. Upon this record, we find that the trial court's conclusion that appellee demonstrated by clear and convincing evidence that appellant failed to provide maintenance and support is not an abuse of discretion.

{¶ 21} Accordingly, appellant's first and second assignments of error are not well-taken.

III. Conclusion

{¶ 22} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Thomas J. Osowik, J.

CONCUR.

Christine E. Mayle, P.J., DISSENTS

MAYLE, P.J.

{¶ 23} Respectfully, I dissent.

{¶ 24} The majority concludes that In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, "implicitly overruled" our decision in Celestino v. Schneider, 84 Ohio App.3d 192, 616 N.E.2d 581 (6th Dist.1992). I disagree. As the Supreme Court of Ohio stated in In re Adoption of M.B. , that case was accepted for review on the following certified conflicts:

The Ninth District Court of Appeals certified two questions, which we agreed to review: one, its decision that monetary gifts from a biological parent to a minor child constitute maintenance and support for purposes of R.C. 3107.07(A) and thus trigger the requirement that parental consent is needed before the adoption of the child is approved-which it found conflicts with In re Adoption of McCarthy , 6th Dist. No. L-91-199, 1992 Ohio App. LEXIS 103, 1992 WL 23175 (Jan. 17, 1992) ; and two, its decision that an appellate court should apply a de novo standard of review to a probate court's decision regarding whether a biological parent's financial gift constitutes maintenance and support of the child-which it found conflicts with In re Adoption of Kat P. , 5th Dist. Nos. 09CA10 and 09CA11, 2009-Ohio-3852 [2009 WL 2372108]. In re Adoption of M.B. at ¶ 1.

{¶ 25} As we expressly recognized in Celestino at fn.1, even though this court had previously held in In re Adoption of McCarthy that a monetary "gift" is not maintenance and support under R.C. 3107.07(A) -which is the rule that was reviewed and upheld by the Supreme Court of Ohio in In re Adoption of M.B. -a child support payment is very different from a gift. A child support payment, no matter how meager, is unquestionably maintenance and support under the plain language of R.C. 3107.07(A). Celestino at 196, 616 N.E.2d 581.

{¶ 26} Although the majority relies upon a single paragraph from the text of In re Adoption of M.B. that, admittedly, appears to broaden its holding to include child support payments, id. at ¶ 25 -even though child support payments were not at issue in that case-the holding of In re Adoption of M.B. is limited to its syllabus under former Rep.Op.R. 1(B), which was in effect when that case was decided on January 25, 2012.

{¶ 27} Former Rep.Op.R. 1(B) provided that "[t]he syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication." Before the July 2012 adoption of the new Rules for the Reporting of Opinions, under Rule 1(B), the syllabus controlled over any seemingly inconsistent statements within the body of a Supreme Court opinion. Akers v. Serv-A-Portion, Inc. , 31 Ohio St.3d 78, 79, 508 N.E.2d 964, fn.1 (1987) ("Although the body of [a Supreme Court] opinion * * * may be somewhat inconsistent with the syllabus of the court, the syllabus is nevertheless the controlling point of law arising from the facts of that case."). Thus, the relevant controlling point of law from In re Adoption of M.B. at paragraph one of the syllabus is:

De minimis monetary gifts from a biological parent to a minor child do not constitute maintenance and support, because they are not payments as required by law or judicial decree as R.C. 3107.07(A) requires.

{¶ 28} This holding does not overrule Celestino , where we articulated a clear distinction between a de minimis monetary gift, which is not maintenance and support, and a child support payment, which is . Id. at 197, 616 N.E.2d 581.

{¶ 29} Moreover, I do not believe that we should overrule Celestino in this case. In Celestino , we astutely recognized that "[t]he inquiry is not whether the parent may be held in contempt, but whether the parent's failure to support as ordered is of such magnitude as to be the equivalent of abandonment. Ohio courts and this court have previously held that any contribution toward child support, no matter how meager, satisfies the maintenance and support requirements of R.C. 3107.07(A)." Celestino at 196, 616 N.E.2d 581 (citing cases).

{¶ 30} R.C. 3107.07(A) provides an exception to the requirement of parental consent to adoption. The Supreme Court of Ohio has repeatedly held that " '[a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.' " In re Adoption of Masa , 23 Ohio St.3d 163, 166, 492 N.E.2d 140 (1986), quoting In re Schoeppner , 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976) ; In re Adoption of Sunderhaus , 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992) (when construing R.C. 3107.07(A), courts are "obliged to strictly construe * * * [its] language to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights."). That is because "[t]he rights to conceive and to raise one's children have been deemed 'essential, * * * basic civil rights of man,' * * * and "[r]ights far more precious * * * than property rights." (Citations omitted.) Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). The permanent termination of parental rights is "the family law equivalent of the death penalty in a criminal case." In re Smith , 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991).

{¶ 31} Given that R.C. 3107.07(A) must be strictly construed to protect the interests of the non-consenting parent, the express language of the statute should be the paramount consideration. Notably, there is no qualifier before "maintenance and support" in R.C. 3107.07(A) -so, strictly construed in favor of the non-consenting parent, this means that any "maintenance and support" is sufficient to preserve the rights of the non-consenting parent, as many Ohio courts have found. Indeed, as recognized in In re Adoption of Salisbury , 5 Ohio App.3d 65, 67, 449 N.E.2d 519 (10th Dist.1982), quoting In re Adoption of Anthony, 5 Ohio App.3d 60, 62-63, 449 N.E.2d 511 (10th Dist.1982) :

Under the statute which existed before enactment of R.C. 3107.07(A), the requirement was that the non-consenting parent "properly" support and maintain the child. Former R.C. 3107.06(B)(4). While that modifier was omitted by the General Assembly in enacting R.C. 3107.07(A), there is authority for the proposition that even under the former statute there had to be a complete failure to support and maintain during the then specified two-year period immediately preceding the filing of the petition. * * * Strictly construing the present statute [ R.C. 3107.07(A) ] to protect the interests of the non-consenting parent, we conclude that the General Assembly intended that so long as the parent complies with his duty to support the child for any period during the one year immediately preceding the filing of the petition, then he has not failed to provide support as required by law, or judicial decree, for one year. Under those circumstances, the parent will not have abandoned his parental responsibilities to the extent that he will be deemed to have forfeited his parental rights.

{¶ 32} This sound interpretation of R.C. 3107.07(A) is reinforced by subsequent amendments to the statute. The prior version of R.C. 3107.07(A) provided:

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.

{¶ 33} The General Assembly amended R.C. 3107.07(A) on April 7, 2009 to its current version, which states:

A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact 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. (Emphasis added).

{¶ 34} "By changing the standard from 'communicate,' which could imply a single contact, to 'more than de minimis contact,' which seems to imply more than a single contact, the Legislature indicated its intent to require more effort from the parent to have contact and communication with the child." In re J.D.T. , 2012-Ohio-4537, 978 N.E.2d 602, ¶ 9 (7th Dist.). Notably, the General Assembly could have similarly amended R.C. 3107.07(A) to require "more than de minimis maintenance and support," without justifiable cause, for parents to retain their right to consent to another person's adoption of their child. It did not.

{¶ 35} Instead, the plain language of R.C. 3107.07(A) does not designate any qualifying amount of "maintenance and support" that a non-consenting parent must pay to avoid complete forfeiture of their parental rights-which means that any amount of maintenance and support during the relevant one-year period is sufficient to preserve one's rights. This is the only interpretation that comports with the express language of R.C. 3107.07(A), which must be strictly construed in favor of the non-consenting parent. In re Adoption of Sunderhaus , 63 Ohio St.3d at 132, 585 N.E.2d 418.

{¶ 36} In my view, the Ohio courts that have concluded otherwise have improperly added qualifying language to "maintenance and support"-for example, "sufficient," "more than token," or "fulfilled"-even though such language is not contained in the governing statute itself. See, e.g. , In re Adoption of K.N.W., 4th Dist. Athens Nos. 15CA36, 15CA37, 2016-Ohio-5863, 2016 WL 4986548, ¶ 30 ("solitary noncompliant support payment did not constitute sufficient maintenance and support of the minor children") (emphasis added); In re R.N.L.O. , 12th Dist. Warren No. CA2007-04-049, 2007-Ohio-4215, 2007 WL 2350987, ¶ 13 (consent is not required where the parent "makes only negligible support payments but * * * is fully capable of providing more than token support to [the] child.") (emphasis added); In re Adoption of Tyler K. Kilbane & Ashley Kilbane , 130 Ohio App.3d 203, 208, 719 N.E.2d 1012 (8th Dist.1998) (consent was not required where the parent made child support payments, but "[i]t cannot be said that [he] fulfilled his support obligations in this case.") (emphasis added). When interpreting a statute, a court must presume that the legislature meant exactly what it said, and cannot delete words or add words that the legislature itself did not include. Cleveland Elec. Illuminating Co. v. Cleveland , 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus ("In matters of construction, it is the duty of [a] court to give effect to the words used, not to delete words used or to insert words not used.").

{¶ 37} For these reasons, I would find that the trial court abused its discretion because, under the authority of Celestino and the plain language of R.C. 3107.07(A), the appellant provided maintenance and support to A.C.B. within the relevant one-year period. See In re Adoption of I.R.R.M. , 5th Dist. Muskingum No. CT2013-0053, 2014-Ohio-1719, 2014 WL 1632136, ¶ 28-29 (recognizing that "even a meager amount of support is sufficient to avoid a finding [that] the parent's consent is not required," citing Celestino with approval, and finding that non-consenting father did not fail to provide maintenance and support under R.C. 3107.07(A) because he made a single payment of $1,279 during the relevant one-year period).

      Appellant has not assigned an error, or provided any argument, relevant to the trial court's determination under the second part of R.C. 3107.07(A) that appellant's failure to provide maintenance and support was without justifiable cause. Thus, we will not reach that issue.

      The current rules differ significantly. Under current Rep.Op.R. 2.2, "[t]he law stated in an opinion of the Supreme Court shall be contained in its text, including its syllabus, if one is provided, and footnotes." The new rules provides no guidance for resolving conflicts or inconsistencies that may exist between the syllabus, text, and footnotes of a Supreme Court opinion.


author: BROWN, P.J.

text:
    In the Matter of: [K.L.], v. [FRANKLIN COUNTY CHILDREN SERVICES, Appellant].
    In the Matter of: [C.B.], v. [Franklin County Children Services, Appellant].
    No. 18AP-150 No. 18AP-151
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on August 7, 2018
    On brief: William T. Cramer, Westerville, for K.L.
    On brief: Bringman Legal Co., L.P.A., and William Paul Bringman, Fredericktown, for appellee J.L.
    On brief: Robert J. McClaren, Kenton, and Jaqueline J. Rapier, for appellant Franklin County Children Services.
    DECISION
   BROWN, P.J.

{¶ 1} Franklin County Children Services ("FCCS"), appellant, appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court temporarily restrained FCCS from placing K.L. and C.B. (collectively, "the children"), in a foster home or kinship placement outside of Franklin County, Ohio, or an adjoining county, until further order.

{¶ 2} Mother and K.L.'s father are the parents of K.L. Mother and C.B.'s father are the parents of C.B. The children were adjudicated neglected and dependent minors. On April 12, 2017, FCCS filed for permanent court commitment ("PCC") with regard to both children. During the period in question, the children were in kinship placement, but that placement was disrupting. There were maternal relatives in Texas interested in the placement of the children. Mother objected to the children moving to Texas. FCCS contended the Texas placement was the least restrictive placement, and it would continue its efforts to have all parents maintain consistent visitation with the children even if they were placed in Texas. On December 9, 2017, K.L.'s father filed for custody of K.L.

{¶ 3} On January 4, 2018, the court held a hearing for mother to present evidence opposing placement in Texas. On January 5, 2018, the court held a shelter-care hearing. At these hearings, evidence was presented that mother objected to placement in Texas, but both children wanted to be placed with relatives in Texas rather than being placed in foster care.

{¶ 4} Consequently, on February 2, 2018, the court issued an order in which it, among other things, temporarily restrained FCCS from placing the children in a foster home or kinship placement outside of Franklin County, or an adjoining county, until further order. FCCS appeals the trial court's judgment, asserting the following assignments of error:

[I.] R.C. 2151.353(A)(2), which allows the court to place a child into the custody of FCCS, does not contain any provision that allows the court to designate a specific placement for the child nor does it allow the court to restrict placement as a means to control the placement of the child. Thus, the Juvenile Court erred and exceeded its statutory authority by issuing a restrictive placement order which required FCCS to place the children in Franklin County or an adjoining county, which resulted in FCCS having to place the children into foster care when an appropriate relative is available.
[II.] The Juvenile Court violated the doctrine of separation of powers by ordering FCCS to place or restricting FCCS to place the children in a specific placement.

{¶ 5} We have requested the parties file supplemental briefs regarding whether the judgment entry appealed from is a final appealable order, and the parties have done so. Ohio appellate courts have jurisdiction to review only final appealable orders of trial courts within their districts. Ohio Constitution, Article IV, Section 3 (B)(2); R.C. 2501.01. If an order is not a final appealable order, the appellate court lacks jurisdiction and the appeal must be dismissed. Prod. Credit Assn. v. Hedges , 87 Ohio App.3d 207, 621 N.E.2d 1360 (4th Dist.1993), fn. 2. Appellate courts are tasked with the duty to sua sponte examine any deficiencies in jurisdiction. Price v. Jillisky , 10th Dist. No. 03AP-801, 2004-Ohio-1221, 2004 WL 504347.

{¶ 6} An appellate court engages in a two-step process when determining whether a judgment or order is final and appealable. First, the court must determine whether the order is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C. 2505.02, the court must determine whether Civ.R. 54(B) applies and, if so, whether the order contains a certification that there is no just reason for delay. Nnadi v. Nnadi , 10th Dist. No. 15AP-13, 2015-Ohio-3981, 2015 WL 5703273, ¶ 12, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989).

{¶ 7} A final order is statutorily defined by R.C. 2505.02, which provides as follows:

(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.

{¶ 8} An order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B) are met. Chef Italiano Corp. v. Kent State Univ. , 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. However, an order that is not final cannot be rendered final merely by the addition of Civ.R. 54(B) language. Noble v. Colwell , 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989) ; Fireman's Fund Ins. Cos. v. BPS Co. , 4 Ohio App.3d 3, 4, 446 N.E.2d 181 (10th Dist.1982).

{¶ 9} Here, FCCS argues the order appealed from was made in a special proceeding and affected a substantial right, as contemplated in R.C. 2505.02(B)(2). While we agree that juvenile court proceedings were not known at common law and, thus, are special proceedings, see In re Adams , 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, ¶ 43, we find the order did not affect a substantial right. A "substantial right," for purposes of R.C. 2505.02, is a legal right entitled to enforcement and protection by law, and one which, if not immediately appealable, would foreclose appropriate relief in the future. In re T.M. , 12th Dist. No. CA2006-01-001, 2006-Ohio-6548, 2006 WL 3575265, ¶¶ 17, 19. The Supreme Court of Ohio has recognized that "parental custody of a child is an important legal right protected by law and, thus, comes within the purview of a 'substantial right' for purposes of applying R.C. 2505.02." In re Murray , 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990).

{¶ 10} However, as the court in T.M. explained, "whether an order is final and appealable turns on the effect that the order has on the pending action, rather than the name attached to it, or its general nature." Id. at ¶ 18, citing Murray . The purpose of a final appealable order is to prevent a case from being presented to the court of appeals in fragments. Id. at ¶ 21, citing Squire v. Guardian Trust Co. , 147 Ohio St. 1, 68 N.E.2d 312 (1946), and In re Boehmke , 44 Ohio App.3d 125, 128, 541 N.E.2d 630 (8th Dist.1988). To establish that an order affects a substantial right, the appellant must establish that, in the absence of immediate review of the order, he or she will be denied effective relief in the future. Id. at ¶ 19, citing State v. Shaffer , 8th Dist. No. 87552, 2006-Ohio-5563, 2006 WL 3028436, ¶ 20 ; Bell v. Mt. Sinai Med. Ctr. , 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993) ; In re Kinstle , 3d Dist. No. 8-97-27, 1998 WL 148075 (Mar. 6, 1998).

{¶ 11} In the present case, the entry FCCS appealed resulted from a hearing on the case plan, a motion for custody by K.L.'s father, FCCS's motion to withdraw its motion for PCC, and FCCS's motion for an extension of custody of the children. The trial court's decision prevented FCCS from placing the children outside central Ohio, required K.L.'s father to complete a psychological evaluation, amended visitation, continued the hearings on the case plan, and K.L.'s father's motion for custody. None of these motions decided the case or prevented a judgment. This was an interlocutory order that could change and be amended by the trial court at any time in the future. The circumstances may change, and the trial court may modify or eliminate the central Ohio limitation on placement. As pointed out by K.L.'s counsel, if the case eventually ends with a result in which FCCS disagrees, FCCS can appeal that determination, and the impact of the trial court's decision to limit placement to central Ohio at that juncture of the proceedings would be more fully understood, which would result in a more complete analysis.

{¶ 12} Other courts have addressed whether similar orders were final appealable orders. For example, in In re T.G. , 12th Dist. No. CA2008-01-026, 2008-Ohio-4165, 2008 WL 3823714, after adjudicating the child dependent and awarding temporary custody to children services, the trial court issued another order providing that a case plan be adopted, that the agency devise a plan to enable the child's parents to participate in the child's treatment and therapy, and that supervised parental visitation continue to occur in the parents' home. However, on appeal of that determination, the appellate court found the order was not final and appealable. The appellate court reasoned the court's order concerned modification of parental visitation and adoption of a case plan, and such order did not determine the action and prevent a judgment, as it did not determine the outcome of the underlying dependency action. The appellate court also found that, with respect to the court's order concerning adoption of the case plan, such order did not foreclose appellant from appropriate relief in the future. The court held that, although a later appeal of the court's visitation order might be "impracticable," Ohio courts have held there is a compelling need to deny appellate review of such matters to avoid piecemeal litigation and the resulting delay it causes both parties and the judicial system.

{¶ 13} Similarly, in T.M. , the child was adjudicated dependent and a disposition was entered granting temporary custody to children services. After a dispositional review hearing, the trial court found reunification would not be in the child's best interest and ordered children services to modify the goal in the case plan from reunification to a goal other than reunification with the parents or the grandmother. On appeal by the parents and the grandmother, the appellate court found the trial court's order was not final and appealable. The appellate court noted the trial court's order did not change the temporary custody order or terminate any custody rights but only ordered children services to amend its stated goal in the case plan from the goal of reunification. The appellate court found it was clear the trial court's order did not decide the case and prevent a judgment, and the appellants were not foreclosed from appropriate relief in the future.

{¶ 14} The determinations in T.G. and T.M. are persuasive, and we find their circumstances analogous to those here. The trial court's order in the present case does not decide the case and prevent a judgment, and FCCS may obtain appropriate relief in the future. Therefore, we find the judgment FCCS has appealed from is not a final appealable order, and we dismiss its appeals.

{¶ 15} Accordingly, FCCS's appeals are dismissed for lack of a final appealable order.

Appeals dismissed.

SADLER and BRUNNER, JJ., concur.


author: ABELE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Adam Cole HUDSON, Defendant-Appellant.
    No. 17CA14
    Court of Appeals of Ohio, Fourth District, Pickaway County.
    DATE JOURNALIZED: March 6, 2018
    Jesse A. Atkins, Columbus, Ohio, for appellant.
    Judy C. Wolford, Pickaway County Prosecuting Attorney, and Robert A. Chamberlain, Pickaway County Assistant Prosecuting Attorney, Circleville, for appellee.
    DECISION AND JUDGMENT ENTRY

      Different counsel represented appellant during the trial court proceedings.

   ABELE, J.

{¶ 1} Adam Hudson, defendant below and appellant herein, appeals his Pickaway County Common Pleas Court judgment of conviction and sentence for murder in violation of R.C. 2903.02(A).

{¶ 2} Appellant assigns one error for review:

"THE DENIAL OF APPELLANT'S MOTION TO SUPPRESS STATEMENTS MADE DURING THE COURSE OF A CUSTODIAL POLICE INTERROGATION REST UPON FINDINGS OF FACT FAILED [SIC] TO MEET THE APPLICABLE LEGAL STANDARDS ATTENDANT TO A SUPPRESSION INQUIRY."

{¶ 3} On December 2, 2016, a Pickaway County Grand Jury returned an indictment that charged appellant with (1) one count of murder, in violation of R.C. 2903.02(A), an unspecified felony, for causing the death of Thomas Mead, and (2) one count of burglary, in violation of R.C. 2911.12(A)(1), a second-degree felony. Appellant entered not guilty pleas.

{¶ 4} On January 25, 2017, appellant filed a motion to suppress statements that he made to the police. At the hearing on the motion, Circleville Police Department Detective Phillip Roar and the appellant testified at the hearing. The trial court also viewed a transcript and a video of the interrogation.

{¶ 5} After considering the evidence, the trial court denied appellant's motion to suppress. The court noted that although the evidence shows that appellant requested an attorney at 22 minutes into the interview, and again at 68 minutes into the interview, at 75 minutes into the interview appellant asked detectives whether he could "take back" his request for an attorney. The court pointed out that during the portion of the interview when appellant invoked his right to counsel, the investigators did not ask questions about the criminal investigation, but rather general questions that pertained to the defendant's arrest and custody as a parole violator. The court stated "[b]ecause the investigators had already determined that Mr. Hudson was on parole, the officers spent the intervening time identifying and contacting his parole officer (who found Mr. Hudson to be in violation of the terms of his parole), gathering the defendant's general contact information, and preparing Mr. Hudson to be transported to the jail because of his parole violation. Only incidental questions were asked, such as how to power off defendant's phone, whether he needs to use the restroom or was thirsty, and whether he had an attorney of his own that he liked. After viewing the video, and reading the transcript, this Court finds that the actions of the investigators during the period of time when Mr. Hudson was standing on his rights only pertained to the arrest and custody of the defendant and were in no way an interrogation of the crime being investigated."

{¶ 6} The trial court further noted that, after appellant stated that he wanted to "take back" his request for counsel, officers twice reminded him that he had been smoking marijuana and may be impaired. Appellant responded that the amount of marijuana he had smoked was "nothing for my tolerance." The interviewer further advised appellant "let's let that get out of your system a little bit and let you think a little bit. Get a little bit more clear headed." Appellant responded, "I am clear headed." The interviewer then stated "I still may have to let you reflect on it, at least for the next 24 hours." The trial court stated "The record continues in this vein until the investigators finally relent to Mr. Hudson's insistence on returning to the interrogation. The transcript and video show that the investigators spent 20 minutes resisting Mr. Hudson's attempts to withdraw his request for an attorney before finally providing him with a Constitutional Rights Waiver to review and sign. Even then, the detective explained Mr. Hudson's rights to him extensively, carefully rephrasing the wording of the form an even asking Mr. Hudson to repeat back his understanding of his rights. The facts show that Mr. Hudson did initiate further discussions with the police, and did knowingly and intelligently waive the right he had previously invoked."

{¶ 7} The trial court also indicated that the video showed that appellant appeared to be lucid. "There was no indication of slurring or confusion. In addition, Mr. Hudson repeatedly claimed that he was not impaired." The court also addressed appellant's complaint that he was hungry and that detectives "enticed him to speak to them and participate in the interrogation by providing him with fast food." The court noted that appellant did not mention his hunger until 78 minutes into the interview. "Notably, his request for food came after he had asked to withdraw his request for an attorney. Fifty-four minutes later, the officers provided him with fast food, which they had purchased and picked up from Wendy's. After Mr. Hudson was presented with the food, he took several minutes, unwrapping and arranging his food and talking to detectives, before he commenced eating. This is hardly the behavior of a starving person." Accordingly, the trial court found no support for appellant's contention that the detectives providing food enticed appellant to speak and to participate in the interrogation. Thus, the court denied the motion to suppress.

{¶ 8} On April 12, 2017, appellant filed a pro se request for a pre-trial hearing and to dismiss his appointed counsel. On April 14, 2017, the trial court excused counsel and appointed different counsel. On May 26, 2017, appellant filed a motion for leave to file a written plea of not guilty by reason of insanity (NGRI) and a request for a psychological evaluation. The court granted the appellant's requests, and subsequently, held a hearing on appellant's competency. The court found appellant competent to stand trial.

{¶ 9} On August 15, 2017, appellant entered a plea of no contest to murder in violation of R.C. 2903.02. The trial court sentenced appellant to serve "fifteen years to life, with said sentence to be served consecutive to the time remaining on postrelease control that had been ordered by the Hocking County Court of Common Pleas in case 2009CR04, that being 296 days as of the day of this sentencing." This appeal followed.

{¶ 10} In his sole assignment of error, appellant asserts that the "denial of appellant's motion to suppress statements made during the course of a custodial police interrogation rest upon findings of fact [that] failed to meet the applicable legal standards attendant to a suppression inquiry."

{¶ 11} An appellate court's review of a decision on a motion to suppress evidence "presents mixed questions of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 at ¶ 8. In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992), citing State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Thus, in our review, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Guysinger , 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusions, whether they meet the applicable legal standard. State v. Michael , 4th Dist. Adams No. 09CA887, 2010-Ohio-5296, 2010 WL 4273225, ¶ 6, citing State v. Klein , 73 Ohio App.3d 486, 488, 597 N.E.2d 1141 (4th Dist.1991).

{¶ 12} Appellant contends that his statements to police during his custodial interrogation (1) were obtained without following the required procedural safeguards of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (2) violated appellant's privilege against self-incrimination.

{¶ 13} The Fifth Amendment to the United States Constitution provides that "No person shall * * * be compelled in any criminal case to be a witness against himself." Article I, Section 10 of the Ohio Constitution guarantees the same. In Miranda v. Arizona , the United States Supreme Court delineated the warnings that must be given to a suspect before custodial interrogation. A suspect subjected to questioning in police custody must first be warned that (1) he or she has the right to remain silent, (2) anything he or she says can be used against him or her in a court of law, (3) he or she has the right to the presence of an attorney, and (4) if he or she cannot afford an attorney, if desired, one will be appointed for him or her prior to any questioning. Miranda at 479, 86 S.Ct. 1602. An individual may waive his or her right to remain silent and to have a lawyer as long as the waiver is knowingly and intelligently made. Id.

{¶ 14} The first issue in Miranda confession cases is usually whether a custodial interrogation actually occurred for purposes of Miranda . The state argues here that appellant was not under arrest at the time he made his pre and post- Miranda statements and that he came voluntarily to the police station.

{¶ 15} In general, "a defendant need not be under arrest to be "in custody" for Miranda purposes. State v. Farris , 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 13. The requirement that police officers administer Miranda warnings applies when a suspect is subjected to both custody and interrogation. State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24. In other words, " Miranda rights only attach when both custody and interrogation coincide." State v. Tellington, 9th Dist. Summit No. 22187, 2005-Ohio-470, 2005 WL 293518, citing State v. Wiles , 59 Ohio St.3d 71, 83, 571 N.E.2d 97 (1991) ; State v. Gurley , 2015-Ohio-5361, 54 N.E.3d 768, ¶ 32. "[A]n individual has been placed into custody [if] * * *, under the totality of the circumstances, a 'reasonable person would have believed that he was not free to leave.' " State v. Gumm , 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995). And, "the 'term interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.' " State v. Williams , 4th Dist. Scioto No. 10CA3381, 2012-Ohio-6083, 2012 WL 6681893, ¶ 18, quoting Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

{¶ 16} Turning to the facts of this case, our review of the record reveals that appellant voluntarily rode with officers in their cruiser to the police station. Once there, the first video clip shows that appellant sat in the interview room for 14 minutes with the door closed. When officers entered the room and began to talk with appellant, they informed him that he was not under arrest. Officers discussed where appellant worked, why he was on parole, and when he had last seen Thomas Mead. Officers took appellant's cell phone, telling him "We're just here to talk." Appellant stated: "You, you, you're asking me about my day. Last time I seen him. Okay, he passed away is what you guys just said when you came up to me. I already know where you're gonna try to get at. I don't want to speak no more until I get a lawyer. * * * I don't have to say nothing else. I don't want to say anything that would incriminate me. And I'm high, I, I... I'm smoking this (marijuana). I don't want to be tricked into talking about things that I shouldn't. Or that doesn't even really matter. Or trying to catch in lies or anything. There's nothing to be told but I don't... I'm not saying no more til I talk to a lawyer." At that point, officers left appellant for twenty-two minutes with the door shut to again check with appellant's parole officer. After the officers returned and asked for his phone code, they again left for another twelve minutes with the door shut to again check with appellant's parole officer.

{¶ 17} During the second video clip, appellant sits for eight minutes in the room with the door shut before officers returned and announced that they intended to take his clothes and take photographs of his body as part of the investigative process. At that point, appellant said "where's my attorney? * * * Hey, if I'm not under arrest why do I have to even do this?" Officers replied "This right here has nothing to do with your request for an attorney. This is all just a part of the investigative process." Officers also indicated that they had contacted appellant's parole officer and that he was under a parole holder.

{¶ 18} While officers took photographs of appellant's body, he made the following statement: "So, where, er, who am I going to be talking to next?" Officers responded, "A lawyer. Because once you tell us you want to talk to an attorney, we ..." Appellant then said "unless you want to take that back, right?" Officers responded: "It's totally up to you, bud. It's totally up to you." A discussion followed about appellant being under the influence of marijuana at the moment and having smoked crack "a couple of times in the last week." In spite of this, appellant maintained that he was clear headed, although he acknowledged that he hadn't eaten since the day before. Officers told appellant they would let him be more clear-headed before talking to them. Then appellant said: "It's not going to take a genius to know once I'm in jail. I'm going to get locked up. I know it. I messed up." Officers told appellant that he needed to reflect on whether he wanted to talk to them because of his drug usage. Appellant then stated that he had not eaten since the previous day. He said "I already know I'm going back." They discussed his medication, Depakote, for epilepsy, then asked, "So, what's your thoughts about talking to us?" He said, "Listen, there are things I'm not going to be able to hide. * * * I'm getting in trouble for this Tom thing."

{¶ 19} Officers again left appellant alone in the room with the door closed and with the promise to bring food. Officers returned fourteen minutes later and told appellant they would get him food and epilepsy medicine. They talked again about appellant asking for an attorney and when the officers returned, then taking it back. When asked if he wanted to "take it back," appellant said "The attorney ain't going to be able to help me. * * * I don't want one." At that point, thirty-five minutes into the second tape, officers discussed appellant's Miranda rights. After discussing the Miranda rights waiver form and obtaining appellant's signature, appellant confessed to killing Thomas Mead. At that point, the officers placed appellant under arrest.

{¶ 20} Once again, the first issue is whether appellant was in custody for purposes of Miranda . Although officers told appellant he was not under arrest and he came voluntarily to the station, the officers' treatment of appellant after he arrived at the police station arguably placed appellant in custody. Officers placed appellant in a room at the police station, closed the door, took his cell phone and discussed his parole status. Because the question, of whether appellant was actually in custody or whether he was free to leave the station and, hence was not in custody, is not critical in this case. In light of the facts we will assume for purposes of argument that a reasonable person in that setting would not believe that they were free to leave.

{¶ 21} We must next determine whether appellant invoked his right to counsel. "When dealing with a claim that law enforcement continued to interrogate the accused after he invoked his right to counsel, the first question is 'whether appellant actually involved his right to counsel.' " State v. Jacobs , 4th Dist. Highland No. 11CA26, 2013-Ohio-1502, 2013 WL 1614960, ¶ 18, quoting Smith v. Illinois , 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed as an expression of a desire for the assistance of an attorney. Jacobs at ¶ 18, quoting Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

{¶ 22} In the case sub judice, we recognize that appellant did, in fact, explicitly invoke his right to counsel. However, if a defendant invokes his or her right to counsel, " 'we may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.' " Jacobs at ¶ 19, quoting Smith v. Illinois , 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488, citing Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards, the United States Supreme Court held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel had been made available, unless the accused himself initiates further communication, exchanges, or conversations with the police. The Supreme Court of Ohio cautions that "[o]nce an accused invokes his right to counsel, all further custodial interrogation must cease and may not be resumed in the absence of counsel unless the accused thereafter effects a valid waiver of his right to counsel or himself renews communication with the police." State v. Williams , 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph four of the syllabus. In the case sub judice, we agree with the trial court's conclusion that appellant initiated further communication with law enforcement when he stated that he wanted to "take back" his previous request for counsel, and again later when he said "I don't want one."

{¶ 23} However, our analysis does not end with having concluded that appellant was under custodial interrogation, invoked his right to counsel, and then himself initiated further conversation with law enforcement. Rather, we must consider whether appellant voluntarily made his statements. After our review of the facts in this case, we conclude that they did. "A suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Oregon v. Elstad , 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In such circumstances, a suspect's second "Mirandized" statement will be admitted into evidence if the suspect's waiver is deemed voluntary. The "voluntariness" test requires an examination of the totality of the circumstances surrounding each confession. Oregon v. Bradshaw , 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Factors to be considered are "* * * the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, rev'd on other grounds , 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

{¶ 24} Appellant, a thirty-one year old man on parole, was properly Mirandized before he confessed to murder. After appellant asked for a lawyer, officers stopped asking questions about the crime and returned to general questions and clarifying his parole status. After appellant later stated that he wished to "take back" his request for counsel, the record shows that officers carefully sought clarification as to whether that was his true intent, and also sought to clarify whether appellant was clear-minded. Here, the record reveals that after appellant signed a waiver of his rights and acknowledged that he understood those rights, appellant confessed. Like the trial court, we find no evidence in the record to suggest that the officers mistreated the appellant or that appellant was subjected to coercive or abusive tactics. Further, Officer Roar testified that, in spite of appellant's admitted drug use, he seemed coherent and intelligent. Also, appellant testified at the suppression hearing that officers had been "more than generous" in their treatment of him at the station.

{¶ 25} After our review of the record, and based upon the totality of the circumstances, we conclude that appellant knowingly and voluntarily waived his Miranda rights, that appellant's statements, both pre-and post Miranda, were voluntary given and properly deemed admissible into evidence. Therefore, the trial court properly denied appellant's motion to suppress evidence.

{¶ 26} Accordingly, based upon the foregoing reasons, we overrule appellant's assignment of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

Hoover, P.J. & McFarland, J.: Concur in Judgment & Opinion