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

 

Erik L. Smith

 

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?

Footnotes
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Copyright © Erik L. Smith.